Newby v. Newby

District Court of Appeal of Florida

Newby v. Newby

403 So. 2d 562, 1981 Fla. App. LEXIS 21032

CourtDistrict Court of Appeal of Florida

DecidedSeptember 8, 1981

DocketNo. 80-1763

StatusPublished

This text of 403 So. 2d 562 (Newby v. Newby) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Newby v. Newby, 403 So. 2d 562, 1981 Fla. App. LEXIS 21032 (Fla. Ct. App. 1981).

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Opinion

PER CURIAM.

While in the process of dissolving their marriage of fourteen years, Cassandra and Jeff Newby, as joint obligors, were sued on a past due promissory note by Elizabeth Robertson, Cassandra’s mother. In response to Robertson’s complaint, Jeff, ap-pellee herein, filed an answer and cross-claim against Cassandra, requesting contribution, restitution, subrogation, and establishment and enforcement of an equitable lien on certain real property. Appellant filed a counterclaim for damages against Jeff, alleging that he had willfully and-physically abused her on several occasions. Appellee thereafter successfully moved to dismiss the counterclaim on the basis of interspousal immunity. Appeal is taken from a final order dismissing the counterclaim with prejudice.

Although a majority of jurisdictions¹ have modified or abolished the doctrine of interspousal immunity, we are nonetheless bound by Florida law upholding the doctrine. Bencomo v. Bencomo, 200 So.2d 171 (Fla.), cert. denied, 389 U.S. 970, 88 S.Ct. 466, 19 L.Ed.2d 461 (1967). This identical issue is currently pending before the Florida Supreme Court on a certified question. See West v. West, 372 So.2d 170 (Fla. 2d DCA 1979). Accordingly, we affirm the dismissal below, and certify the following question to the Supreme Court of Florida as one of great public interest:

WHETHER A PERSON INJURED BY THE INTENTIONAL ACT OF ANOTHER PERSON IS PRECLUDED FROM ASSERTING LIABILITY AGAINST THE TORTFEASOR IN A CIVIL SUIT SOLELY BECAUSE THE TORTIOUS CONDUCT OCCURRED WHILE THEY WERE MARRIED TO EACH OTHER.

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PER CURIAM.

While in the process of dissolving their marriage of fourteen years, Cassandra and Jeff Newby, as joint obligors, were sued on a past due promissory note by Elizabeth Robertson, Cassandra’s mother. In response to Robertson’s complaint, Jeff, ap-pellee herein, filed an answer and cross-claim against Cassandra, requesting contribution, restitution, subrogation, and establishment and enforcement of an equitable lien on certain real property. Appellant filed a counterclaim for damages against Jeff, alleging that he had willfully and-physically abused her on several occasions. Appellee thereafter successfully moved to dismiss the counterclaim on the basis of interspousal immunity. Appeal is taken from a final order dismissing the counterclaim with prejudice.

Although a majority of jurisdictions¹ have modified or abolished the doctrine of interspousal immunity, we are nonetheless bound by Florida law upholding the doctrine. Bencomo v. Bencomo, 200 So.2d 171 (Fla.), cert. denied, 389 U.S. 970, 88 S.Ct. 466, 19 L.Ed.2d 461 (1967). This identical issue is currently pending before the Florida Supreme Court on a certified question. See West v. West, 372 So.2d 170 (Fla. 2d DCA 1979). Accordingly, we affirm the dismissal below, and certify the following question to the Supreme Court of Florida as one of great public interest:

WHETHER A PERSON INJURED BY THE INTENTIONAL ACT OF ANOTHER PERSON IS PRECLUDED FROM ASSERTING LIABILITY AGAINST THE TORTFEASOR IN A CIVIL SUIT SOLELY BECAUSE THE TORTIOUS CONDUCT OCCURRED WHILE THEY WERE MARRIED TO EACH OTHER.

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403 So. 2d 562, 1981 Fla. App. LEXIS 21032, Counsel Stack Legal Research, https://law.counselstack.com/opinion/newby-v-newby-fladistctapp-1981.

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