Should there be a cause of action between spouses based upon emotional distress unaccompanied by physical injury in a divorce case? This matter comes before this court on defendant's motion to dismiss the second amended complaint alleging the said tort and plaintiff's motions to compel discovery and for leave to depose defendant and co-respondent.
The parties were married on July 9, 1960. Plaintiff had just graduated from college and was about to attend law school. Defendant worked fulltime until their first of three children was born in the following year. Defendant thereafter continued to work part-time for the next several years. After plaintiff graduated from law school, defendant left her job and became a full-time homemaker.
When the children were older, defendant returned to work, approximately 10 to 11 years ago. This is when trouble started in this marriage. There were numerous periods of separation during this time, the first of which lasted for two weeks, others
for two-and-a-half years, a year and four months, three months, and nine months. The wife filed for divorce in February 1985 alleging separation in July 1982. Plaintiff filed a counterclaim for divorce based on separation. The suit was dismissed in February 1986 for want of prosecution under R. 1:13-7. From the start of defendant's employment, plaintiff was suspicious of defendant's relationship with her boss. Plaintiff continuously asked his wife whether she was having an affair with him. Defendant repeatedly denied any wrongdoing.
Plaintiff and defendant were living together on August 6, 1990, when defendant left plaintiff. On September 8, 1990, plaintiff learned for the first time that defendant had had an adulterous relationship with her employer during all of the time of her employment. Before learning about the adultery, plaintiff filed for divorce based on extreme cruelty on August 15, 1990. An answer and counterclaim were filed by defendant on September 17, 1990. Thereafter, on September 18, 1990, plaintiff filed an amended complaint containing a cause of action for divorce on the grounds of adultery. The allegations contained in his amended complaint were specific as to time and place and named the alleged co-respondent.
Shortly after filing his amended complaint, plaintiff served upon defendant 64 interrogatories (excluding subparts) seeking various details concerning the alleged adultery. Not wishing to contest plaintiff's cause of action for divorce, defendant prepared an appearance as to the amended complaint. By her attorney's correspondence of December 6, 1990, she refused to answer the interrogatories on the grounds that she would not be offering any testimony or evidence to rebut the allegations of adultery contained in the amended complaint. After having received the appearance as to the amended complaint, but before same was filed, plaintiff filed a second amended complaint including a count for the intentional infliction of emotional distress, or as otherwise called, a cause of action for "outrage." For a discussion and recognition of this tort as an independent cause of action rather than an element of damages
Can one spouse sue the other for the intentional infliction of emotional distress in absence of physical injury in a divorce action? There is no doubt that one spouse can sue the other for an intentional tort causing personal injury and the damage that ensues therefrom. Tevis v. Tevis, 79 N.J. 422, 400 A.2d 1189 (1979); Merenoff v. Merenoff, 76 N.J. 535, 388 A.2d 951 (1978); see also G.L. v. M.L., 228 N.J. Super. 566, 550 A.2d 525 (Ch.Div.1988). However, there is no divorce case in New Jersey that recognizes a cause of action between spouses based upon emotional distress unaccompanied by physical injury. Therefore, this court looks to other jurisdictions. The Supreme Court in Oregon in Davis v. Bostick, 282 Or. 667, 580 P. 2d 544 (1978), held that absence of physical injury did not immunize a husband against suit by his wife for intentional infliction of emotional distress. Among the wife's allegations were that the husband had threatened to kill her and her male friends, accused her of being in the hospital for an abortion, destroyed some personal property, and told third persons she had a fatal mental illness. Noting that the court had abolished in an earlier case the rule of interspousal immunity in actions asserting intentional torts, defendant argued that where no physical injury is alleged, there should be immunity. Id., 580 P. 2d at 546. The basis for defendant's argument was that the courts would be inundated with divorce proceedings that would allege actions for intentional infliction of emotional distress. In refusing to create that exception to the abrogation of interspousal immunity for intentional torts, the Davis court stated that:
We decline to carve out that exception to the destruction of interspousal immunity for intentional torts. Apitz [ v. Dames, 205 Or. 242, 287 P. 2d 585 (1955)] did not create a flood of litigation, even though it is a fair guess that the deterioration of many marriages since 1955 has been accompanied by the rendering by one spouse to another of physical injury. While injuries of a psychic nature as proved here are very likely much more common than physical injury, we see no virtue in basing a rule of law on a speculative fear of
increased litigation. We prefer to rely upon the burden of proof as the best protection against unwarranted, meretricious or ...