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30 Idaho L. Rev. 869 (1993-1994)
Interspousal Torts: Characterizing Damages

handle is hein.journals/idlr30 and id is 885 raw text is: INTERSPOUSAL TORTS: CHARACTERIZING DAMAGES I. INTRODUCTION The doctrine of interspousal immunity in tort has been abolished in most community property states either completely or partially.1 An interspousal tort action can create problems in the character- ization of the damages recovered by the injured spouse.2 If recovery is made during marriage, some courts are concerned that the tort- feasor spouse will profit from tortious conduct.3 If recovery is made upon dissolution, an additional problem is presented because the victim spouse may be awarded double recovery by being awarded damages for the injury plus a disproportionate community property settlement.4 In a recent case, Twyman v. Twyman,5 the Texas Supreme Court asserted that in actions which join divorce and tort claims it was imperative to assure that the injured spouse did not get a double recovery.6 This survey will discuss recent developments in character- ization of interspousal tort awards both during marriage and upon dissolution. II. TOPIC CASE DISCUSSION In Twyman v. Twyman, Sheila Twyman filed for a divorce from her husband, William, after nearly 16 years of marriage.7 She later amended the divorce petition adding a claim for emotional harm.' 1. WILLIAM A. REPPY, JR. & CYNTHIA A. SAMUEL, COMMUNITY PROPERTY IN THE UNITED STATES 12-16 (4th ed. 1994). See Valencia Bilyeu, Survey, Joining Interspousal Injury Tort Claims With Divorce Actions, 30 IDAHO L. REV. 859 (1994). 2. REPPY, supra note 1, at 12-16. This article focuses on the characteriza- tion of damages arising out of interspousal tort claims. Other issues which may arise from interspousal tort actions include statutes of limitation, joinder with divorce proceedings, choosing a jury trial or a bench trial, and separately recording attorney fees for the dissolution action from attorney fees for the tort. Discussion of these issues is beyond the scope of this article, but for a discussion on joinder of interspousal torts and divorce actions see Bilyeu, supra note 1 at 3. REPPY, supra note 1, at 12-16. 4. Twyman v. Twyman, 855 S.W.2d 619, 625 (Tex. 1993). 5. 855 S.W.2d 619 (Tex. 1993). 6. Id. at 625. 7. Id. at 620. 8. Id. Sheila's claim alleged that William had tried to engage her in devi- ate sexual acts. Id. She alleged that William pursued sadomasochistic bondage activities in spite of his knowledge that: (1) prior to their marriage she had been raped at knife point and (2) she feared this kind of interaction. Id. at 620 n.1. In addition, she alleged that William told her that if she did not participate in this activity, their marriage would be ruined. Id.

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