Doctrine of
necessities in NJ
In Jersey Shore
Medical Center – Fitkin Hospital v. Estate of Baum, 84 N.J. 137 (1980) the
court held that the common law rule must yield to
the evolving interdependence of married men and women and to the reality that a
marriage is a partnership. Consequently, we declare that both spouses are
liable for necessary expenses incurred by either spouse in the course of the
marriage. As long as the marriage subsists, the financial resources of both
spouses should be available to pay a creditor who provides necessary goods and
services to either spouse. That conclusion comports with our belief that in
most marriages a husband and wife consider themselves as a financial unit in
paying necessary expenses incurred by either marital partner. However, a
judgment creditor must first seek satisfaction from the income and other
property of the spouse who incurred the debt. If those financial resources are
insufficient, the creditor may then seek satisfaction from the income and
property of the other spouse.
JERSEY SHORE
MEDICAL CENTER-FITKIN HOSPITAL, A CORPORATION OF THE STATE OF NEW JERSEY,
PLAINTIFF-APPELLANT, v. ESTATE OF SIDNEY BAUM (DECEASED), DEFENDANT, AND
CAROLYN H. BAUM, DEFENDANT-RESPONDENT.
The Supreme Court of New Jersey.
Decided July 2, 1980.
Robert A. Abrams argued the cause for
appellant (Patterson & Abrams, attorneys; John A. Covino on the brief).
Alexander Levchuk argued the cause for
respondent.
The opinion of the Court was delivered
by POLLOCK, J.
This case presents the novel question
whether, in the absence of an express agreement, a widow is liable for the
hospital and medical expenses of the last illness of her deceased husband. The
trial court granted summary judgment for the defendant, Carolyn Baum, and
plaintiff, Jersey Shore Medical Center-Fitkin Hospital, appealed. We granted
direct certification. 81 N.J. 358
(1979). We now affirm the summary judgment for Mrs. Baum.
Sidney Baum, defendant's late husband,
died at the hospital after a long illness which exhausted his medicaid benefits
and left a balance due the hospital of $25,709.50. He owned no assets at the
time of his death, except his interest as tenant by the entirety with Mrs. Baum
in their home, and, presumably, miscellaneous personal assets of minimal value.
His estate was insolvent, and no one sought letters of administration. Although
the estate is named as a party, it has not been represented in these proceedings.
Mrs. Baum owns no assets of any value
other than her home, which is assessed at $25,200. She never agreed to pay her
husband's hospital bill.
The hospital sued Mrs. Baum and the
estate of Mr. Baum for the balance due on Mr. Baum's bill, contending that the
common law rule that imposed liability on a husband for the necessaries
furnished to his wife should be extended so that a wife would be liable for the
necessaries, such as expenses of a last illness, of her husband. That
contention is based on the increasing independence
[84 N.J. 141]
of women, the emerging concept of
marriage as a partnership, and the belief that husbands and wives should be
treated equally.
We conclude that the common law rule
must yield to the evolving interdependence of married men and women and to the
reality that a marriage is a partnership. Consequently, we declare that both
spouses are liable for necessary expenses incurred by either spouse in the
course of the marriage. As long as the marriage subsists, the financial resources
of both spouses should be available to pay a creditor who provides necessary
goods and services to either spouse. That conclusion comports with our belief
that in most marriages a husband and wife consider themselves as a financial
unit in paying necessary expenses incurred by either marital partner. However,
a judgment creditor must first seek satisfaction from the income and other
property of the spouse who incurred the debt. If those financial resources are
insufficient, the creditor may then seek satisfaction from the income and
property of the other spouse.
I
The common law rule imposing liability
on a husband for his wife's necessaries derived from the husband's obligation
to support his wife. See Capodanno v. Capodanno, 58 N.J. 113 (1971); Bonanno
v. Bonanno, 4 N.J. 268
(1950). That duty arises not from principles of contract law, but from the
marriage relation and the public policy of the State. Bonanno v. Bonanno,
supra at 273; Turi v. Turi, 34 N.J.Super. 313
(App. Div. 1975) (action for separate maintenance); 10 N.J.Practice
(Silverman, Marriage, Divorce and Separation), § 331 (1978). See
generally 41 Am.Jur.2d Husband and Wife §§ 329 et seq.
(1968). The husband's duty developed in an era when a wife depended on her
husband for support and, in exchange, provided him with her services and
society. See, e.g., Howard v. Howard, 135 N.J. Eq. 55 (E. &
A. 1944); Fallon v. Fallon, 111 N.J. Eq. 512 (E. & A. 1932).
A wife had no duty at common law to support her husband. See 41 Am.Jur.2d
Husband and Wife § 334.
[84 N.J. 142]
The husband's duty to support his wife
led to the imposition of liability on him for necessaries furnished to her. The
basis of liability for expenses incurred by the wife was the husband's presumed
failure to provide adequate support. Saks & Co. v. Bennett, 12 N.J.Super. 316
(App. Div. 1951); 10 N.J.Practice §§ 334, 335; 41 Am.Jur.2d §§
348, 349. There is no doubt that the cost of hospital and medical care
qualifies as a necessary expense. Capodanno v. Capodanno, supra. See
generally 10 N.J.Practice §§ 335 et seq. Accordingly, in the
converse of the present case, a widower was found liable for the payment of the
expenses of the last illness of his wife. Foster v. Reiss, 31 N.J.Super. 496,
508 (App. Div. 1954), rev'd on other grounds 18 N.J. 41 (1955). See
also DeLisle v. Reeves, 96 N.J. Eq. 416, 418 (E. & A. 1924)
(administrator of deceased wife's estate not under a duty to pay nursing and
funeral expenses of wife). However, a wife was not bound to pay the expense of
the last illness of her husband unless she assumed that obligation. 41 Am.Jur.2d
Husband and Wife § 382 at 320.
Statutes have modified the rights and
duties of husband and wife in dealing with each other and with creditors, but
not regarding necessary expenses. For example, N.J.S.A. 2A:34-23 imposes
the same duties of alimony or support on both spouses in matrimonial actions
and provides for the equitable distribution of property on divorce. However,
that statute does not apply to the liability of one spouse to a creditor for
necessaries acquired by the other spouse.
Similarly, the Married Woman's Act
declares that the separate property of a married woman shall not be liable for
her husband's debts. N.J.S.A. 37:2-15. A corresponding provision states
that a husband shall not be liable for the debts of his wife contracted in her
own name. N.J.S.A. 37:2-10. However, the Married Woman's Act did not
alter the husband's duty to pay for the necessary expenses of his wife. 10 N.J.
Practice § 332; 41 Am.Jur.2d Husband and Wife §§ 329, 348. See
also Capodanno v. Capodanno, supra, 58 N.J. at 119; Bonanno v.
Bonanno, supra, 4 N.J. at 274. A husband has an independent duty
arising out of the marital relationship to pay for the necessary
[84 N.J. 143]
expenses of his wife. In effect, a
wife's necessaries are her husband's debts. Consequently, the Married Woman's
Act, which protects a husband from the debts of his wife, does not affect his
independent liability.
Here, the hospital claims that expenses
of the last illness of Mr. Baum should be treated like funeral expenses. A
husband is primarily liable for his wife's funeral expenses, Stryker v.
Sands, 4 N.J. 182
(1950); but, in general, a wife is not primarily liable for her husband's
funeral expenses. See Donato v. Mason, 117 N.J.Super. 1, 3-4
(App. Div. 1971). The hospital argues that, although a wife is immune from
liability for the debts of her husband under N.J.S.A. 37:2-15, the
immunity does not extend to debts of the husband's estate. The argument
continues that, since funeral expenses of the husband are debts of his estate,
the statute does not accord immunity to the wife from liability for those
debts.
There are two flaws in that argument.
One, already discussed, is that it is the common law, not legislative
definition of "debts", that has led to disparate treatment of
husbands and wives. Consequently, it is the common law, not a statute, that
results in unequal treatment of husbands and wives. The second flaw is that
last illness expenses are necessary expenses of the deceased spouse. Those
expenses are incurred while the spouse is living, and a creditor can take
action to obtain payment while that spouse is alive. In this respect, last
illness expenses differ from funeral expenses and should not be characterized
as a debt of the estate rather than the deceased.
The hospital contends the present rule,
which protects a wife from liability for her husband's necessary expenses
without according a similar protection to a husband, violates the equal
protection clause of the Fourteenth Amendment of the United States
Constitution. The focus of the hospital's contention is on the Married Woman's
Act, N.J.S.A. 37:2-15, which states that a wife is not liable for her
husband's debts. However, as previously discussed, the unequal treatment of
husbands and wives flows not from the statute, but the common law.
Consequently, the more appropriate target of the unequal protection attack is
the common law rule.
[84 N.J. 144]
II
Although not raised by Mrs. Baum, we
will address the question of the standing of the hospital to challenge the
common law rule. The hospital has standing to challenge that rule if it has a
sufficient stake in the outcome of the case. Crescent Pk. Tenants Assoc. v.
Realty Eq. Corp. of N.Y., 58 N.J. 98,
107 (1971). Where the public interest is involved, only a slight additional
private interest is necessary to confer standing. Salorio v. Glaser, 82 N.J. 482, 491 (1980)
(slip opinion at 6). A husband would have standing to challenge the common law
rule because it places a greater burden on husbands than on wives. The question
becomes whether the hospital as a creditor of the husband has standing to
advance that argument.
Ordinarily, a litigant may not claim
standing to assert the rights of a third party. See State v. Norflett, 67 N.J. 268, 276 n. 7
(1975); Frazier v. Liberty Mutual Insurance Company, 150 N.J.Super.
123, 137 (App. Div. 1977). However, standing to assert the rights of
third parties is appropriate if the litigant can show sufficient personal stake
and adverseness so that the Court is not asked to render an advisory opinion. Id.
In this case neither the estate of the
husband nor any party other than the hospital could assert the husband's
rights. As indicated, no letters of administration have been issued for the
estate of Sidney Baum, the estate is not represented in these proceedings and,
in any event, it is insolvent. The only time a husband could raise the issue is
if a hospital sued him to recover the last illness expenses of his wife. When
expenses are sought from the wife, the creditor is an appropriate party to
assert the husband's rights. Accordingly, we conclude that the hospital has a
sufficient stake in this controversy to accord it standing to challenge the
doctrine of necessaries.
III
We next consider the impact of the
federal and state constitutions on the common law rule. The Fourteenth
Amendment of the United States Constitution applies to state common
[84 N.J. 145]
law as well as statutory law. The
applicability of the equal protection clause depends not on whether a state has
exercised its power in any particular form, but whether it has, in fact,
exercised that power. New York Times Co. v. Sullivan, 376 U.S. 254, 265, 84
S.Ct. 710, 718, 11 L.Ed.2d 686, 697 (1964). A state is obligated to
provide equal protection of its laws not only in the acts of its legislature,
but also in the decisions of its courts. Stated otherwise, "It has been
recognized that the action of state courts in enforcing a substantive
common-law rule formulated by those courts, may result in the denial of rights
guaranteed by the Fourteenth Amendment, even though the judicial proceedings in
such cases may have been in complete accord with the most rigorous conceptions
of procedural due process." Shelley v. Kraemer, 334 U.S. 1, 17, 68 S.Ct.
836, 844, 92 L.Ed. 1161, 1182-1183 (1948) (footnote omitted). See
also Nashville, C. & St. L. Ry. v. Browning, 310 U.S. 362, 369, 60
S.Ct. 968, 972, 84 L.Ed. 1254, 1258 (1940). See generally Tribal,
American Constitutional Law § 18-6 (1978). Accordingly, the
discrimination against husbands which results from application of the New
Jersey common law doctrine of necessaries may be challenged under the equal
protection clause of the Fourteenth Amendment.
In support of its argument that wives
should be liable for the debts of their husbands, the hospital relies on Orr
v. Orr, 440 U.S. 268,
99 S.Ct. 1102, 59 L.Ed.2d 306 (1979). In Orr, the United States
Supreme Court held that a statute under which husbands, but not wives, might be
ordered to pay alimony, violated the equal protection clause of the Fourteenth
Amendment to the United States Constitution. Orr followed a line of
cases in which the Supreme Court rejected gender-based classifications. See
Califano v. Goldfarb, 430 U.S. 199,
97 S.Ct. 1021, 51 L.Ed.2d 270 (1977) (social security provision allowing
benefits to widower only if he was receiving half of his support from his wife
is unconstitutional); Craig v. Boren, 429 U.S. 190, 97 S.Ct.
451, 50 L.Ed.2d 397 (1977) (law prohibiting beer sales to males under 21
and females under 18 is unconstitutional); Stanton v. Stanton, 421 U.S. 7, 95 S.Ct. 1373,
43 L.Ed.2d 688 (1975) (law
[84 N.J. 146]
setting age of majority of women at 18,
and men at 21 is unconstitutional); Weinberger v. Wiesenfeld, 420 U.S. 636, 95 S.Ct.
1225, 43 L.Ed.2d 514 (1975) (social security law providing that
survivors' benefits based on deceased husband's earnings are payable to wife
and children but benefits based on deceased wife's earnings are payable only to
children is unconstitutional); Frontiero v. Richardson, 411 U.S. 677, 93 S.Ct. 1764,
36 L.Ed.2d 583 (1973) (requirement that a wife must show her husband is
actually dependent in order to claim him as a dependent for purposes of armed
forces benefits allowances is unconstitutional); Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251,
30 L.Ed.2d 225 (1971) (state law giving preference to men as
administrators of estates violates equal protection). But see Califano v.
Webster, 430 U.S. 313,
97 S.Ct. 1192, 51 L.Ed.2d 360 (1977) (upholding method of calculating
old age insurance benefits where male required to include three years more than
female in average wage determination); Schlessinger v. Ballard, 419 U.S. 498, 95 S.Ct.
572, 42 L.Ed.2d 610 (1975) (upholding different requirements for
mandatory discharge without promotion from navy); Kahn v. Shevin, 416 U.S. 351, 94 S.Ct.
1734, 40 L.Ed.2d 189 (1975) (upholding state tax exemption for widows
only as having valid compensatory objective). Since Orr, the Court has
reaffirmed the principle that the concept of the wife as the dependent spouse is
outdated. See Wengler v. Druggists Mutual Ins. Co., 446 U.S. 142, 100 S.Ct.
1540, 64 L.Ed.2d 107 (1980) (invalidating a state workers' compensation
statute that required widowers but not widows to prove dependency); Califano
v. Westcott, 443 U.S. 76,
99 S.Ct. 2655, 61 L.Ed.2d 382 (1979) (social security law providing aid
to families with dependent children when husband becomes unemployed, but not
when wife becomes unemployed, is unconstitutional).
The basis of the decision in Orr
was that the female is no longer "`destined solely for the home and the
rearing of the family, and only the male for the marketplace and the world of
ideas.'" Orr, supra, 440 U.S. at 280, 99 S.Ct. at
1112, 59 L.Ed.2d at 319, quoting Stanton v. Stanton, supra, 421 U.S.
at 14-15, 95 S.Ct. at 1373, 43 L.Ed.2d at 688. In holding that
the alimony
[84 N.J. 147]
statute violated equal protection, the
Court rejected the "old notion" that the man is solely responsible to
provide a home and its essentials. Orr, supra, 440 U.S. at
279-280, 99 S.Ct. at 1112, 59 L.Ed.2d at 319. Although our focus
is not on a statute, but a common law rule, the same reasoning that led to the
invalidation of an alimony statute in Orr now requires modification of
the common law rule to achieve a fairer distribution of the cost of necessaries
incurred by either spouse in the course of their marriage.
A modern marriage is a partnership, with
neither spouse necessarily dependent financially on the other. Many women have
shed their traditional dependence on their husbands for active roles as income
earners. Lepis v. Lepis, 83 N.J. 139,
156 (1980) (allowing modification of separation agreement because of changed
circumstances); Tomarchio v. Township of Greenwich, 75 N.J. 62, 73 (1977)
(holding that a workers' compensation statute that requires widowers, but not
widows, to prove dependence in order to recover benefits was unconstitutional);
In re Gaulkin, 69 N.J. 185,
193 (1976) (abolishing prohibition on the wife of a judge from engaging in
political activity).
With increasing frequency, wives
contribute significantly to the financial well-being of their families. In
1977, in 48.8% of families with both a husband and wife, both spouses were wage
earners. U.S. Bureau of Labor Statistics, Marital and Family Characteristics
of Workers, 1970 to 1978, 50, Table 1 (Special Labor Force Report # 219).
In some cases, a wife may even be the primary source of support. Id.
Interdependence is the hallmark of a
modern marriage. The common law rule imposing liability on husbands, but not
wives, is an anachronism that no longer fits contemporary society. Under the
present rule, even a husband who is economically dependent on his wife would be
liable for the necessary expenses of both spouses, while the wife would not be
liable for either. In perpetuating additional benefits for a wife when the
benefits may not be needed, the rule runs afoul of the equal protection clause.
Orr, supra, 440 U.S. at 282-283, 99 S.Ct. at 1113, 59 L.Ed.2d
at 321.
[84 N.J. 148]
We recognize that in many instances the
present rule correctly operates to favor a needy wife. Even wives who have
entered the work force generally earn substantially less than their husbands. See
U.S. Bureau of Labor Statistics, Marital and Family Characteristics of
Workers, 1970-1978, supra at A-50. The same study showed that over 45% of
all married women with "husband present" had no work experience in
1977. Id. at A-36. However, that is an insufficient reason to retain a
gender based classification that denigrates the efforts of women who contribute
to the finances of their families and denies equal protection to husbands. Weinberger
v. Wiesenfeld, supra, 420 U.S. at 645, 95 S.Ct. at 1232, 43 L.Ed.2d
at 523.
Although the New Jersey Constitution
does not contain an equal protection clause, the same result follows as under
the United States Constitution. The relevant section of the New Jersey
Constitution provides "All persons are by nature free and independent, and
have certain natural and unalienable rights, among which are those of enjoying
and defending life and liberty, of acquiring, possessing, and protecting
property, and of pursuing and obtaining safety and happiness." Art. I,
par. 1. In interpreting that section, this Court stated that it provides
comparable or superior protection against unequal protection of the law. Peper
v. Princeton University Board of Trustees, 77 N.J. 55, 79 (1978)
(discrimination on the basis of gender in private employment may deny equal
protection of the laws under Art. I, par. 1 of the New Jersey Constitution).
For reasons previously set forth, we conclude that the rule concerning
necessaries with its inherent discrimination against husbands constitutes a
denial of equal protection of the laws under the New Jersey Constitution.
Even without a mandate for change under
the New Jersey and United States Constitutions, the common law has an inherent
capacity to adapt to changes such as the movement of married women toward
economic equality. See, e.g., Immer v. Risko, 56 N.J. 482, 488 (1970)
(abolishing interspousal immunity for torts arising out of negligent operation
of automobile). At one time, the status of married women might have justified
[84 N.J. 149]
placing on a husband the duty to pay for
his wife's necessary expenses without a correlative duty on her part. As
previously discussed, the imposition of that duty no longer comports with the
role of a contemporary wife and concepts of a modern marriage. The common law
must adapt to the progress of women in achieving economic equality and to the
mutual sharing of all obligations by husbands and wives.
IV
There are various alternatives available
in establishing a gender-neutral rule for the payment of necessary expenses
incurred by either spouse. One alternative is to read literally the Married
Woman's Act, N.J.S.A. 37:2-10 and 15. That act forms a gender-neutral
scheme under which each spouse is independent of the other. However, literal
application of the act would leave creditors of a dependent spouse without
recourse to the only realistic source of payment, the financially independent
spouse. The act tends to ignore that in a modern marriage husbands and wives,
whether they contribute income or domestic services, are a financial unit. A
necessary expense incurred by one spouse benefits both. In a viable marriage, husbands
and wives ordinarily do not distinguish their financial obligations on the
basis of which one incurred the debt. Consequently, literal application of the
Married Woman's Act would not comport with the expectations of husbands, wives,
or their creditors.
Another alternative is to extend the
common law rule and hold each spouse completely liable for the other's debts.
Although that rule would treat spouses equally, it would be equality with a
vengeance. The rule would result in the immediate exposure of the property of
one spouse for a debt incurred by the other spouse. A creditor would receive
the same benefits as if both spouses had agreed to joint liability. Neither
equity nor reality justifies imposing unqualified liability on one spouse for
the debts of the other or exempting one spouse from liability for the necessary
expenses of the other.
[84 N.J. 150]
In other states, legislatures have
attempted to treat spouses fairly without eliminating liability for necessary
expenses. Some states have enacted family expense statutes that declare
expenses of the family are chargeable to the property of both husband and wife.
See, e.g., Ill. Rev. Stat. c. 68, § 15. Some of those statutes
apparently recognize the devastating impact of the cost of terminal illnesses
and expressly except the expenses of the last illness of either spouse,
imposing primary liability on the estate of the deceased spouse. See, e.g.,
Conn. Gen. Stat. § 46-10. Other states have passed equal rights amendments
declaring that equality of rights shall not be denied or abridged because of
the sex of an individual. See generally Annotation, 90 A.L.R.3d
158 (1979). In Pennsylvania, which has adopted an equal rights amendment, one
court has held that a wife may be liable for her husband's last illness
expenses. See Albert Einstein Medical Center v. Gold, 66 Pa. D. & C.
2d 347 (C.P. 1974). Another Pennsylvania court, also relying on the equal
rights amendment, invalidated the common law rule imposing liability for
necessaries on a husband. Albert Einstein Medical Center v. Nathans, 27 Pa.Fiduc.
561 (C.P. 1977).
The problem of making each spouse liable
to support the other is discussed in Brown, et al., The Equal Rights
Amendment: A Constitutional Basis for Equal Rights for Women, 80 Yale
L.J. 871, 946 (1971):
If
husband and wife had equal resources and earning capacity, neither would have a
claim for support against the other. However, if one spouse were a wage earner
and the other spouse performed uncompensated domestic labor for the family, the
wage-earning spouse would owe a duty of support to the spouse who worked in the
home. Creating in each spouse equal liability for support might give creditors
an advantage in some instances where they would not currently be able to reach
the wife's resources. If this extra liability created hardship for families,
the legislature could make rules limiting the extent of creditors' access to a
family's resources.
Our Legislature has indicated its
preference for a gender-neutral approach in N.J.S.A. 2A:34-23, which
provides that alimony or maintenance may be awarded to either party in
accordance with "the circumstances of the parties and the nature of the
case." The statute also provides on divorce for the equitable distribution
of property acquired during the marriage, and does
[84 N.J. 151]
not distinguish between husbands and
wives in either instance. However, the New Jersey Legislature has not addressed
the specific problem of family expenses.
The appropriate result concerning the
liability for necessaries follows from our view that "marriage is a shared
enterprise, a joint undertaking, that in many ways ... is akin to a
partnership." Rothman v. Rothman, 65 N.J. 219, 229 (1974)
(construing the equitable distribution statute, N.J.S.A. 2A:34-23). We
hold that both spouses are liable for the necessary expenses incurred by either
spouse. In a viable marriage, the marital partners can decide between
themselves how to pay their debts. A creditor providing necessaries to one
spouse can assume that the financial resources of both spouses are available
for payment. However, in the absence of an agreement, the income and property
of one spouse should not be exposed to satisfy a debt incurred by the other
spouse unless the assets of the spouse who incurred the debt are insufficient.
Normally a person is not liable for the
debt of another in the absence of an agreement. The imposition of liability
based on marital status alone is an exception to that rule. Nonetheless, it is
a justifiable exception. The reasonable expectations of marital partners are
that their income and assets are held for the benefit of the marital partnership
and, incidentally, for creditors who provide necessaries for either spouse.
However, it would be unfair to accord the same rights to a creditor who
provides necessaries on the basis of an agreement with one spouse as to a
creditor who has an agreement with both spouses. In the absence of such an
agreement, a creditor should have recourse to the property of both spouses only
where the financial resources of the spouse who incurred the necessary expense
are insufficient. Marshalling the marital resources in that manner grants some
protection to a spouse who has not expressly consented to that debt.
V
The remaining consideration is whether
the rule declared in this opinion should be applied to the hospital's claim
against
[84 N.J. 152]
Mrs. Baum. In determining whether to
apply our decision retrospectively or prospectively, our goal is to achieve
substantial justice in view of the reasonable expectations of the parties. Barone
v. Harra, 77 N.J. 276,
281 (1978) (decision establishing compensability under workers' compensation
act for injuries occurring during lunch break would not be applied
retroactively). Reliance on the prior law is a primary factor. Darrow v.
Hanover Township, 58 N.J. 410,
416 (1971) (abrogation of interspousal tort immunity in automobile negligence
action applied prospectively). Mrs. Baum properly assumed that she incurred no
liability when the hospital provided services to her husband, and the hospital
did not expect payment from her in providing those services. Since both parties
relied on the prior law when the expense was incurred, it would be unfair to
apply the rule retrospectively and impose on Mrs. Baum liability for her
husband's hospital bill.
On the record before us, there is no
basis to hold Mrs. Baum liable for her husband's obligation to the hospital. We
conclude that our holding should be applied prospectively; that is, only to
debts incurred after the date of this decision. Merenoff v. Merenoff, 76
N.J. 536, 560 (1978) (abolition of interspousal tort immunity in personal
injury actions). See also Tomarchio v. Township of Greenwich, supra, 75 N.J.
at 78 (invalidation of proof of dependency requirement in workers' compensation
statute applied prospectively); Pascucci v. Vagott, 71 N.J. 40, 50 (1976)
(invalidity of welfare eligibility regulation applied prospectively to allow
for legislative action and to avoid administrative inconvenience); Darrow v.
Hanover Township, supra, 58 N.J. at 420.
We affirm the summary judgment in favor
of defendant.
SULLIVAN, J., concurring in the result.
For affirmance — Chief Justice WILENTZ and Justices SULLIVAN, PASHMAN, SCHREIBER, HANDLER
and POLLOCK — 6.
For reversal — None.
22.
Rule 28. Marital privilege--Confidential
communications.
No person shall disclose any communication
made in confidence between such person and his or her spouse unless both shall
consent to the disclosure or unless the communication is relevant to an issue
in an action between them or in a criminal action or proceeding in which either
spouse consents to the disclosure, or in a criminal action or proceeding coming
within section 17 of P.L.1960, c.52 (C.2A:84A-17). When a spouse is
incapacitated or deceased, consent to the disclosure may be given for such
spouse by the guardian, executor, or administrator. The requirement for consent
shall not terminate with divorce or separation. A communication between
spouses while living separate and apart under a divorce from bed and board
shall not be a privileged communication.