## Facts

- Robert C. Counts and Lillie Drew Counts were married and living together in late 1974.
- Robert alleged that during the marriage Lillie solicited Miles Randolph Turner to kill Robert in exchange for $5,000.
- On January 30, 1975, Turner allegedly attacked Robert at the marital home intending to kill him; Robert alleged severe physical and mental injuries.
- Robert alleged Lillie concealed her role and the parties continued to cohabit until Robert discovered her involvement in March 1975.
- Turner was convicted of maliciously wounding Robert and ordered to make restitution as a condition of a partially suspended sentence.
- Lillie was convicted of conspiring to maliciously wound Robert.
- The parties later obtained a no-fault divorce on separation grounds in February 1977.
- In March 1977, after the divorce, Robert filed a civil tort action against Turner and Lillie seeking compensatory and punitive damages based on the January 1975 attack.

## Issues

1. Whether interspousal immunity bars a tort action by a husband against a former wife for intentional personal injuries inflicted during the marriage.
2. Whether a divorce after the injury but before suit permits the court to recognize a new exception allowing the claim to proceed.

## Decision

- The Supreme Court of Virginia affirmed the dismissal of the claim against Lillie on demurrer.
- The court held interspousal immunity applied because the parties were spouses when the alleged tort occurred.
- The court declined to create a new judicial exception for intentional torts of extreme severity when suit is brought after divorce.
- The court treated existing exceptions as limited and inapplicable on these facts.

## Legal Principles

- Under Virginia common law, a personal injury action generally does not lie between spouses for torts committed during coverture.
- The applicability of interspousal immunity turns on the parties’ marital status at the time the cause of action arose, not at the time the suit is filed.
- Judicially recognized exceptions to interspousal immunity are construed narrowly; expansion with broad social and economic effects is viewed as a legislative matter.
- Allowing post-divorce suits for torts committed during marriage risks encouraging strategic delay of litigation and disrupting prospects of reconciliation.

## Conclusion

Because the alleged conspiracy and resulting assault occurred while the parties were married and cohabiting, interspousal immunity barred the husband’s tort action against his former wife even though the suit was filed after divorce, and the court refused to recognize a new exception for intentional interspousal violence.


Counts v. Counts, 266 S.E.2d 895 (Va. 1980)