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ABROGATING THE DOCTRINE OF NECESSARIES IN FLORIDA: THE FUTURE OF SPOUSAL LIABILITY FOR NECESSARY EXPENSES AFTER CONNOR V. SOUTHWEST FLORIDA REGIONAL MEDICAL CENTER, INC.

SHAWN M. WILLSON[*]
Copyright © 1997 Florida State University Law Review

I. INTRODUCTION
II. CONNOR AND THE HISTORY OF THE DOCTRINE IN FLORIDA
A. Cases Addressing the Doctrine
B. The Florida Supreme Court's Decision in Connor
1. The Majority Opinion
2. Justice Overton's Dissent
III. THE CONSENSUS OF THE STATES
A. Joint and Several Liability
1. Judicial Implementation of Joint and Several Liability
2. Legislative Implementation of Joint and Several Liability
3. Joint and Several Liability as a Creditor's Tool
4. Spouses Living Apart
B. Primary Liability on the Spouse Who Incurred the Debt
C. Marriage as Partnership
D. Primary Liability on the Husband
E. The Equal Protection Problem Persists
F. Abrogation of the Doctrine
1. The Response of Other Legislatures
2. The Effect of Abrogation
IV. CONCLUSION

I. INTRODUCTION

The law is not static. It must keep pace with changes in our society, for the doctrine of stare decisis is not an iron mold which can never be changed. . . . It may be argued that any change in this rule should come from the legislature . . . . Legislative action could, of course, be taken, but we abdicate our own function, in a field peculiarly nonstatutory, when we refuse to reconsider an old and unsatisfactory court-made rule.[1]
The doctrine of necessaries is a common-law doctrine first adopted by the Florida courts in 1895.[2] The doctrine, which originated in English courts more than three hundred years ago,[3] held a husband liable to third parties for any necessaries the third party provided to his wife.[4] At common law, a woman's legal identity merged with that of her husband; she could not own property, enter into contracts, or receive credit as an individual.[5] This condition, known as coverture, created a need for the doctrine of necessaries because a married woman was dependent upon her husband for maintenance and support. By prohibiting women from obtaining necessaries, the law forced women to look to the bounty of their husbands for food, shelter, clothing, and medical services.[6]

In 1943, the Florida Legislature abrogated coverture,[7] yet the necessaries doctrine remained. As late as December 1995, a husband remained liable for the necessaries incurred by his wife.[8] However, the longstanding common-law doctrine created issues of equal protection because women had no similar liability for their husbands' debts.[9]

The Florida Supreme Court recognized the need to either abolish the doctrine or extend liability to both spouses in Shands Teaching Hospital & Clinics, Inc. v. Smith.[10] Despite this recognition, the court refused to decide the issue, imploring the Legislature to resolve the question.[11] In December 1995, the court faced the issue once again in Connor v. Southwest Florida Regional Medical Center, Inc.[12] The court, believing a lack of consensus existed among the states employing the doctrine, decided to abolish the doctrine, leaving the Legislature to codify the doctrine if it wished.[13] In dissent, Justice Ben Overton suggested that the judiciary was too quick to pass responsibility to the Legislature.[14] He believed the court's decision was actually in the minority, and that the doctrine should be modified to afford primary and secondary liability.[15] As it stands, the doctrine remains uncodified by the Florida Legislature. Two bills proposing joint and several liability between spouses were introduced during the 1996 Regular Session, but died in committee.[16]

Part II of this Comment examines the history of the necessaries doctrine in Florida and provides an overview of the court's Connor decision. Part III explores the decisions of other states addressing the necessaries issue. In addition, Part III discusses the options that legislatures may consider and the need for any of these options in today's society. Finally, Part IV concludes that the Florida Legislature should not codify any form of the necessaries doctrine.

II. CONNOR AND THE HISTORY OF THE DOCTRINE IN FLORIDA

A. Cases Addressing the Doctrine

The doctrine of necessaries was originally adopted in Florida over a hundred years ago in Phillips v. Sanchez.[17] Ironically, Mr. Phillips was the spouse in need of medical care.[18] For the last two years of his life, he was an almost entirely blind invalid suffering from a skin disease.[19] Mrs. Phillips kept boarders in their home and could not care for her husband by herself due to the responsibilities of managing the household.[20] She therefore retained the services of her sister to assist in Mr. Phillips' care.[21] Finding that Mrs. Phillips had authority to act as the agent of her husband, the court stated:

As a general proposition, the wife has no authority to bind the husband by contract unless she is his agent in fact. This well known exception to this general rule is an incident to her right of support from her husband, and she is, for that purpose, his agent, and can bind him to pay for such things as are necessary for the proper maintenance of herself and family. Domestic service in accordance with the means of the husband and social station of the family is a necessity.[22]
Thus, Mr. Phillips, through his estate, was required to pay. Significantly, the court found Mr. Phillips' medical care a necessity for his wife.[23]

Eighty-five years later, and thirty-seven years after the Florida Legislature abrogated coverture, a Florida court addressed for the first time the question of whether the doctrine resulted in a wife's liability for the necessary expenses of her husband. In Manatee Convalescent Center v. McDonald,[24] the Second District Court of Appeal extended the doctrine, holding the wife liable for medical expenses incurred by her deceased husband.[25] The court looked to actions of the Florida Legislature, which had adopted a reciprocal and complementary burden of support between spouses.[26] For example, in 1971, the Florida Legislature changed all references to "husband" and "wife" in the divorce laws, chapter 61, Florida Statutes, to "spouse" or "party."[27] Additionally, the Legislature amended section 61.08, Florida Statutes, to allow alimony for either spouse.[28] In light of these changes, the McDonald court found that a modification of the doctrine was appropriate.[29] The Third District Court of Appeal reached a similar decision soon after in Parkway General Hospital, Inc. v. Stern.[30]

In 1986, the matter finally reached the Florida Supreme Court in Shands Teaching Hospital & Clinics, Inc. v. Smith.[31] The court in Shands rejected McDonald and Stern, holding that the decision to abrogate the doctrine of necessaries was best left to the Legislature.[32] The court agreed that it was an anachronism to hold the husband liable for a wife's debts without holding a wife similarly responsible and found merit in the arguments of both the hospital and the wife.[33] The hospital argued that the marital partnership benefits when one spouse receives medical services.[34] These benefits, the hospital asserted, gave rise to an implied-in-law contract, and thus the other spouse should be liable to prevent unjust enrichment.[35] However, the wife denied that she had received any benefit or unjust enrichment from her husband's medical services.[36] She argued that the hospital should have sought her guaranty of the medical bills before they rendered services and sought payment from the assets of her deceased husband's estate.[37]

The Florida Supreme Court hesitated to create a fixed rule of law because it could "easily visualize instances where it would be inequitable to hold either a wife or a husband liable for medical services rendered to a spouse, just as we can visualize instances where it would be inequitable not to hold either spouse liable for medical services received by the other spouse."[38] As such, the Shands decision focused on the court's desire and authority to modify a common-law rule.[39]

Significantly, the Florida Supreme Court's decision in Shands did not address the underlying equal protection issue created by the doctrine. Instead, the court held that the hospital as petitioner did not have standing to make an equal protection argument.[40] By refusing to decide, the court essentially left the issue open for the district courts of appeal.

Two years after Shands, the equal protection issue came before the Second District Court of Appeal in Webb v. Hillsborough County Hospital Authority.[41] A husband, who did not contract for medical services provided to his wife, argued that he should not be liable for the debt because such liability would violate his right to equal protection under the Florida and federal constitutions.[42] The court agreed that a one-sided application of the necessaries doctrine resulted in an equal protection violation and relied on McDonald and Stern to conclude that the doctrine should be extended.[43] The Shands decision did not deter the Second District Court from extending the doctrine. Instead, the court concluded that the Florida Supreme Court's disapproval of McDonald and Stern was based on the hospitals' lack of standing to make equal protection claims.[44] With the husband bringing suit in this case, no such standing issue existed.[45] Therefore, the court chose to extend the doctrine with one limitation: "For purposes of pleading and proof by a creditor, a showing that the spouse to whom necessaries were provided is unable to pay . . . shall be a condition precedent to the liability of the other spouse for the necessaries."[46] Despite the supreme court's call to the Legislature in Shands, the Webb court believed it had discretion to modify the rule:

[I]f a court failed to make such a choice, followed existing common-law by affirming a final judgment . . . which held a husband responsible for necessaries provided to his wife, left law as is that a wife is not reciprocally responsible, and simply announced that the choice of law is for the legislature to make, the constitutional equal protection violation would have been ignored, which a court is not entitled to do. Thus, it appears inevitable that there be a court-made choice of law in order not to ignore the equal protection violation.[47]
Webb, however, did not end the controversy surrounding the necessaries doctrine. In Heinemann v. John F. Kennedy Memorial Hospital[48] and Faulk v. Palm Beach Gardens Community Hospital, Inc.,[49] the Fourth District Court of Appeal disagreed with the Webb court and held that a wife was not liable for the necessary expenses incurred by her husband.[50] The Fifth District Court of Appeal also rendered a decision in direct conflict with Webb. In Waite v. Leesburg Regional Medical Center, Inc.,[51] the court simply disregarded Webb and held that an unmodified necessaries doctrine violated neither the federal Equal Protection Clause nor its state counterpart.[52]

B. The Florida Supreme Court's Decision in Connor

Kenneth Connor incurred medical expenses in 1992 for services provided to him by Southwest Florida Regional Medical Center.[53] Connor was unable to pay an $85,000 outstanding balance owed to Southwest.[54] In 1993, Southwest sued Connor and his wife for the debt, claiming a written agreement obligated the Connors to pay.[55] Mrs. Connor moved to dismiss Southwest's complaint against her because she had not executed any agreement to pay for the services provided to her husband.[56]

The trial court followed an unmodified doctrine of necessaries as it believed existed under Shands and disregarded the Webb court's expansion of the doctrine.[57] As a result, the court dismissed the claim.[58] Subsequently, the Second District Court of Appeal reversed and remanded the case, recognizing that the doctrine of necessaries in Florida was "muddied" and certifying the case to the Florida Supreme Court as being in conflict with four cases in other districts.[59]

1. The Majority Opinion

The supreme court began its opinion by discussing the history of the doctrine, highlighting McDonald, Shands, and Webb, as well as the four cases that directly disagreed with or ignored Webb.[60] Although Connor was before the court in the same posture as Shands, the conflict in the district courts over the abrogation or extension of the doctrine forced the court to address the equal protection issue it had left unresolved in Shands.[61]

Mrs. Connor argued that the doctrine of necessaries could no longer be justified because women could contract freely for their own necessaries.[62] The hospital argued that although the original purpose behind the doctrine no longer existed, the continuance of the doctrine served an important function by promoting the partnership theory of marriage.[63] The hospital contended that the doctrine should therefore be extended to create liability for both men and women to the third-party creditors of their spouses.[64]

In justifying its decision to abrogate the doctrine, the court looked to the lack of consensus among other states confronting the issue. First, the court cited three cases that abrogated the doctrine entirely and gave the state legislature the choice whether to enact a version of the doctrine into law.[65] It went on to cite six cases that extended the doctrine's application to both sexes.[66]

In addition, the court observed that the legislatures of four states—Oklahoma, Kentucky, Georgia, and North Dakota—had enacted laws dealing with the doctrine.[67] Both Oklahoma and Kentucky had codified the doctrine in its original common-law form.[68] Georgia had abolished the doctrine in 1979,[69] and North Dakota had imposed joint and several liability for debts incurred by either spouse for food, clothing, fuel, and shelter.[70] The North Dakota statute, however, does not require a spouse to contribute to the other spouse's medical expenses.[71]

Thus, the court believed its refusal to modify the common law in Shands was reinforced by the lack of consensus among other state courts and legislatures.[72] Similarly, the court concluded that its refusal to hold a wife liable for her husband's necessaries was correct in light of the Florida Legislature's inaction since Shands.[73] In turn, equal protection concerns demanded that the court refuse to hold a husband liable for his wife's necessaries as well.[74] By abrogating the doctrine, the court claimed it was actually refraining from making a policy decision better left to the Legislature.[75]

2. Justice Overton's Dissent

In dissent, Justice Overton expressed dismay with the reasoning behind the court's decision to abrogate.[76] While the majority relied on the lack of consensus among other states to justify its position on the doctrine, Justice Overton emphasized that the court's decision to abrogate was actually in the minority.[77]

Justice Overton agreed that the doctrine, in its present state, violated the Equal Protection Clause.[78] Nevertheless, he felt that the doctrine "is just as important today, under the partnership theory of marriage, as it was when the doctrine was created under the unity theory of marriage."[79] According to Justice Overton, abrogation "weaken[s] the obligations of marriage by eliminating the spousal duty to care for one another," "shift[s] the policy of this state by, in effect, requiring each spouse to take care of himself or herself," and "reduces the legal obligations of the marriage contract."[80]

Justice Overton reasoned that the Legislature's inaction implied agreement with the judicially created policy surrounding the common-law doctrine of necessaries as it existed before Connor.[81] Further, he asserted that it was within the court's discretion to decide the merits of the case because the incorporation of the doctrine into Florida's common law was originally a matter of judicial policy.[82] Interestingly, Justice Overton disagreed with the majority's opinion that a lack of consensus existed among the states.[83] To support this assertion, Justice Overton tallied the number of cases addressing the doctrine and considered their outcomes.[84]

In his survey of these cases, Justice Overton discussed the options exercised by various courts. Twelve states had extended the doctrine in one of the following three ways: (1) by imposing joint and several liability;[85] (2) by imposing primary liability on the spouse who incurred the debt and secondary liability on the other spouse;[86] or (3) by imposing primary liability on the husband and secondary liability on the wife.[87] Four states had abrogated the doctrine entirely,[88] and two had simply reaffirmed the common-law doctrine without addressing the equal protection concerns.[89]

Further, Justice Overton argued that Florida had moved to a partnership theory of marriage, and that the doctrine was just as applicable today as it was in 1895: "[I]n many households, both spouses are employed but only one spouse provides the medical coverage for the entire household. Under these circumstances, the extension of the doctrine fits like a glove by requiring the more able spouse to care for the needs of the household."[90] Justice Overton stated that each spouse is entitled to share in the fruits of the marital partnership and cited two cases, Canakaris v. Canakaris[91] and Thompson v. Thompson,[92] as involving the equitable distribution principles recognized by Florida.[93] Canakaris held that spouses are considered partners for purposes of equitable distribution of marital assets upon divorce,[94] while Thompson held that professional goodwill obtained after the formation of the marriage partnership was a partnership asset.[95]

Finally, Justice Overton cited Via v. Putnam[96] as an illustration of the court's commitment to spousal support. Putnam was a probate case and did not address the doctrine of necessaries.[97] However, Justice Overton quoted the Putnam court for the proposition, "The institution of marriage has been a cornerstone of western civilization for thousands of years and is the most important type of contract ever formed."[98]

III. THE CONSENSUS OF THE STATES

A. Joint and Several Liability

1. Judicial Implementation of Joint and Several Liability

The North Carolina Supreme Court recognized joint and several liability as a viable solution to an outdated necessaries doctrine in North Carolina Baptist Hospitals, Inc. v. Harris.[99] In Harris, the hospital filed suit against both Mr. and Mrs. Harris to collect approximately $3000 for medical expenses incurred by Mr. Harris.[100] Mrs. Harris specifically refused to sign as guarantor at the time of her husband's admission to the hospital.[101] When the hospital business office gave her the form authorizing treatment for Mr. Harris, she signed it in her husband's name and noted that the signature was signed by her hand.[102] While the lower court granted summary judgment against Mr. Harris, it refused to hold Mrs. Harris liable, dismissing the complaint.[103] The North Carolina Supreme Court, however, found Mrs. Harris liable for the debt in its entirety, holding that a wife may be held responsible for the necessary medical expenses of her husband, even in the absence of an express undertaking on her part.[104]

The Harris court's analysis focused primarily on the state's trend toward gender neutrality and the need for neutrality in the application of the doctrine.[105] Although Mrs. Harris argued that abrogation of the doctrine would achieve this objective, the court reasoned that a reciprocal duty for both spouses would serve several beneficial ends.[106] The court observed that the doctrine had historically encouraged health care providers and facilities to provide needed medical services to married persons.[107] According to the court, the doctrine also recognized that marriage involved shared wealth, expenses, duties, and rights.[108] To allow for spousal liability, the court opined, would be to recognize "a personal duty of each spouse to support the other, a duty arising from the marital relationship itself and carrying with it the corollary right to support from the other spouse."[109] The court thus adopted joint and several liability, but did not elaborate on its decision to invoke that method as opposed to primary and secondary liability.

In Kilbourne v. Hanzelik,[110] the Tennessee Supreme Court also found that the necessaries doctrine applied to both sexes. However, the facts of Kilbourne differ from those of Harris or any of the Florida cases discussed above. The Kilbourne court based its decision to extend the doctrine on the since-overruled Manatee Convalescent Center, Inc. v. McDonald.[111] In Kilbourne, the group medical insurance of the appellant, Linda Kilbourne, paid $50,000 in medical expenses incurred by her husband after a car accident in which the other driver was killed.[112] She subsequently filed suit against the administrator of the deceased driver's estate to recover those expenses.[113] The trial court granted summary judgment against Mrs. Kilbourne based on common-law rules that did not obligate a wife to pay for her husband's necessaries and that denied her a right to recover for necessaries that were in fact paid by her.[114] The court of appeals affirmed the decision, but the Tennessee Supreme Court ultimately reversed and remanded, noting the existence of amended alimony statutes that established a gender-neutral burden of support in both Florida and Tennessee.[115] The supreme court adopted the reasoning in McDonald, thereby allowing Mrs. Kilbourne a cause of action to recover the money she, or in actuality, her insurance company, paid.[116]

In his concurring opinion, Justice Harbison stated that several issues raised by the estate administrator were still open.[117] A factual dispute existed as to whether Mrs. Kilbourne and her husband were separated at the time of the accident.[118] Justice Harbison noted that a duty to furnish necessaries to a spouse living apart is different from that of spouses living together.[119]

2. Legislative Implementation of Joint and Several Liability

A number of states currently have family expense statutes and statutes that expressly codified an expanded doctrine implementing joint and several liability.[120] Florida legislators introduced bills in the 1996 Regular Session aimed at doing the same.[121] Both bills failed, dying in committee before reaching the floor.[122] Their introduction, however, illustrates the future of the doctrine in Florida and the direction the Legislature may take in codifying an expanded doctrine. Florida House Bill 1211 and Florida Senate Bill 906 both stated: "The husband and wife are liable jointly and severally for any debts contracted by either, while living together, for necessary household supplies of food, clothing, and fuel, for medical care, and for shelter for themselves and family, and for the education of their minor children."[123] Unlike the Virginia, Montana, and Hawaii statutes, which simply create spousal liability for "necessaries,"[124] the Florida bills specifically listed the covered expenses. North Dakota, on the other hand, imposes joint and several liability for food, clothing, fuel, and shelter, but does not include medical expenses.[125] This exclusion is a significant difference because most of the modern cases dealing with the doctrine of necessaries focus on medical costs.[126]

3. Joint and Several Liability as a Creditor's Tool

Recognizing that most doctrine-of-necessaries cases today do not involve a neglectful spouse who refuses to provide food, shelter, and clothing to the other spouse, it becomes apparent that the doctrine owes its continued existence to its use as a collection device for creditors. In the last fifty years, all of the Florida cases in which a party invoked the doctrine involved unpaid medical expenses.[127] In case after case, hospitals sought to trap an unwilling spouse into making payment on a debt for which he or she did not contract.[128]

A doctrine providing for joint and several liability allows a hospital or other creditor unfettered discretion in the collection of a debt because those creditors may seek payment from either spouse, regardless of which spouse actually incurred the debt.[129] The New Jersey Supreme Court noted that such an extension of the doctrine treats spouses equally, but characterized the rule as "equality with a vengeance."[130] The court stated:

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.[131]
The entire purpose of the original necessaries doctrine—to provide for a spouse who cannot provide for her or himself—is further undermined because joint and several liability allows a creditor to proceed against a nondebtor spouse regardless of whether the financial resources of the debtor spouse are sufficient to cover the debt.[132] In other words, the doctrine, touted as a device that encourages marital care and support, is reduced to a creditor's remedy.[133]

4. Spouses Living Apart

Some state laws recognize that a support duty may not exist if spouses are not living together.[134] The recent Florida bills and the Virginia statute state this exception;[135] other states' statutes do not expressly make a distinction, but rather clarify it through case law.[136] Without this distinction, a spouse who is not living with the debtor at the time the debt is incurred and who awaits final dissolution of the marriage could be liable for the debt.

In Bartrom v. Adjustment Bureau, Inc.,[137] the Supreme Court of Indiana held that the duty of spousal support continues until the marital relationship is dissolved.[138] Finding irrelevant an Indiana statute allowing equitable distribution to take place at the date of final separation, the court cited a case that held that an estranged spouse may look to the other spouse for support pending the date of final dissolution.[139] Due to a lack of precedent that might suggest spousal support could be terminated prior to divorce, the court held that Mrs. Bartrom was liable for expenses incurred by her husband after the couple filed for divorce, but before the final dissolution.[140] The inequity of such a situation was recognized by the sponsors of the Florida bills.[141]

B. Primary Liability on the Spouse Who Incurred the Debt

Other courts have elected to extend the necessaries doctrine to both spouses by imposing primary liability on the spouse who incurred the debt and secondary liability on the other.[142] As discussed above, the New Jersey Supreme Court found joint and several liability an inequitable solution because it gave the same rights to a creditor who contracted with one spouse as it gave to a creditor who held an agreement with both.[143] Nevertheless, the court recognized marriage as a "shared enterprise [and] a joint undertaking" that is "akin to a partnership."[144] As a result, the court held that a creditor who provides necessaries to one spouse can assume that the financial resources of both spouses may be used for payment; however, one spouse may only become liable for the debt when the resources of the other spouse who incurred the debt are insufficient.[145] The court justified its position by stating, "Marshaling the marital resources in that manner grants some protection to a spouse who has not expressly consented to that debt."[146] Relying on the partnership theory of marriage, the court chose an alternative somewhat less extreme than either joint and several liability or abrogation.[147]

C. Marriage as Partnership

In Connor, Justice Overton stressed the importance of the partnership theory of marriage.[148] He stated that under the partnership theory, each spouse is entitled to share in the financial fruits of the marriage, a concept he believed Florida recognized in its equitable principles of distribution.[149] As Justice Overton suggested, the shared financial success or failure of a couple is an important aspect of marriage.[150] Nevertheless, marriages and business partnerships are not sufficiently analogous; the ultimate goal of marriage is not financial enterprise and profit.[151] Significantly, the cases mentioned in Justice Overton's dissent involved dissolution of marriage and allowed for a case-by-case determination of how much each spouse contributed to the marriage and how much each might take away.[152] These cases suggest that the law must step into the boundaries of the marriage institution to make sense of the chaos that a separation of such a partnership creates.[153] While applying the principles of partnership and equitable distribution are necessary when a marriage ends,[154] the application of these principles to the marriage itself is less appropriate.

The partnership theory of marriage casts onto all married couples one belief: two individuals are united as one financial entity.[155] However, some couples choose to join their lives without joining their resources.[156] Some spouses enter into premarital agreements to protect assets each brings into the marriage and maintain separate bank accounts and credit cards.[157] This arrangement is not yet the norm, but the trend illustrates a changing society upon which neither the legislature nor the judiciary should cast antiquated beliefs. The unity theory of marriage that prevailed a century ago and a doctrine of necessaries that required no reciprocal duty for a woman to support a man seem absurd and outdated now.[158] How long is it before a partnership theory of marriage no longer fits the needs of modern society?

Allowing the law to interfere with the marriage itself—to dictate that an individual can no longer contract as an individual but rather only as an entity—goes far beyond the state's interest in promoting marital support.[159] The doctrine of necessaries undermines the rights of the individual because it attaches liability to one individual for the debts of another. Mrs. Harris had a reason for refusing to guarantee her husband's medical expenses, although we can only speculate as to what that reason was.[160] When courts or lawmakers interfere with a spouse's decision by allowing the doctrine of necessaries to stand, they succumb to a paternalistic attitude that ignores a basic principle: One can decide when and how one will contract for liability and whose debts one will guarantee.[161]

Furthermore, Florida is not a community property state. Therefore, marital property is owned separately, and neither spouse has a legal interest in the assets or income of the other. This fact further undermines the analogy between marriage and business partnerships. The doctrine of necessaries in effect leads to a system of community property by imposing liability for each spouse's debts on the other.[162] As such, neither form of the doctrine of necessaries—joint and several liability or primary and secondary liability—is an adequate alternative.

Finally, Justice Overton argued that "in many households, both spouses are employed but only one spouse provides the medical coverage for the entire household. Under these circumstances, the extension of the doctrine fits like a glove by requiring the more able spouse to care for the needs of the household."[163] If both spouses are earning wages that could be contributed to potential medical expenses, one can only assume Justice Overton is referring to health care insurance that may be a benefit of one spouse's job and not the other. However, doctrine-of-necessaries cases that involve any mention of insurance disputes are practically nonexistent.[164] Therefore, Justice Overton's example is inapt because the necessaries doctrine is generally utilized only in cases in which an individual is indebted to a health care provider outright.[165]

D. Primary Liability on the Husband

The Wisconsin Supreme Court extended the doctrine to place primary liability on the husband and secondary liability on the wife, regardless of who incurred the debt.[166] The court found that joint and several liability was not an appropriate alternative because, statistically, the majority of married women were not the primary wage earners in their respective families and were partially dependent on their husbands.[167]

This modification did not present a gender-neutral solution, however, and the equal protection issue came before the Wisconsin Supreme Court two years later in Marshfield Clinic v. Discher.[168] In that case, the court cited several United States Supreme Court cases that held that a gender-based rule does not violate the Equal Protection Clause if it serves important governmental objectives and the means employed are substantially related to the achievement of those objectives.[169] In light of these cases, the court upheld the doctrine it had modified earlier, stating that imposing primary liability on the husband serves several important goals:

The rule benefits families by making it more likely that they will obtain necessary and appropriate goods and services. It enables wives to obtain credit more easily, rather than having to depend on their husbands to make necessary purchases. It also protects wives from economic hardship by placing primary liability on husbands. This is significant because . . . wives have made substantial economic gains in the past decade, but substantial economic disparities still persist between husbands and wives.[170]
At the same time, the court recognized the rule would become outmoded in a society in which women are equal with men on an income-producing level. The court stated:

In the future it may be that wives will achieve greater equality with their husbands in terms of their relative financial strength. If that occurs then this rule may need to be modified, but for the present it is well suited to the relative economic status of the typical husband and wife.[171]
Marshfield was decided in 1982, and the necessaries doctrine has not been modified further by the Wisconsin Legislature.

E. The Equal Protection Problem Persists

It is generally agreed that placing primary liability on the husband is a poor solution because it does little to correct any disparities between the sexes.[172] It is not a gender-neutral alternative and is still subject to constitutional attack.[173] At least one commentator argues that the decision of the Wisconsin Supreme Court was simply wrong.[174] Furthermore, although extending the doctrine in this way may take statistics into account, it panders to a view of wives as dependent and inferior and thus perpetuates a stereotype that a forward-looking judiciary or legislature should seek to avoid.[175] The minimal protection such a rule affords women does not outweigh the societal harm it may cause to the gender.

F. Abrogation of the Doctrine

Four states abolished the doctrine of necessaries before Florida.[176] The high courts in three of these states concluded that extending the necessaries doctrine represented a fundamental change in policy with broad social implications, and was therefore a decision better left to the legislature.[177] The Florida Supreme Court reached the same conclusion in Connor and explicitly stated, "We do not make a judgment as to which is the better policy for the state to adopt."[178] The Mississippi Supreme Court is the only court to make a definite comment on the wisdom of its decision and not implore legislators to rectify the problem.[179] However, the court's explanation was brief, stating:

Nothing in our jurisprudence obligates one spouse to be liable to a third party for the debts of the other without express consent. To hold otherwise would violate art. 4, § 94 of the Mississippi Constitution and open the door for either spouse to control or deplete the other's separate estate.[180]
The Mississippi Legislature has allowed the supreme court's decision to stand.

1. The Response of Other Legislatures

Presently, only one legislature has accepted a court's challenge to codify some form of the doctrine of necessaries.[181] One year after the Virginia Supreme Court abrogated the doctrine,[182] the Virginia Legislature responded by amending the chapter entitled "Property Rights of Married Women."[183] The statute provides: "The doctrine of necessaries as it existed at common-law shall apply equally to both spouses, except where they are permanently living separate and apart . . . ."[184] However, the statute does not specify whether the courts should apply joint and several liability or primary and secondary liability.

2. The Effect of Abrogation

Creditors unable to collect from wealthy spouses may find abrogation a harsh policy.[185] Creditors that provide goods or services to a financially dependent spouse cannot collect the debt from the financially independent spouse and may remain unpaid. However, most creditors ask for a guarantor before services are provided as a means to protect themselves from this outcome.[186] Judging from the small number of doctrine-of-necessaries cases in Florida, most creditors have little difficulty obtaining the guarantee of the other spouse. Most spouses would seem to have little problem signing an express contract for necessary medical services provided to their husbands or wives. Even if a spouse were aware that his or her refusal to guarantee would free that spouse from individual financial responsibility, most would not choose this tactic for fear that their failure to sign might jeopardize the other spouse's chances of obtaining treatment. By allowing spouses to cover their individual debts, abrogation of the doctrine permits those spouses who have a reason to refuse or who maintain separate finances to structure their marriage and finances as they choose, rather than structure them upon the philosophy of the legislature or the judiciary.[187]

Because the state cannot know what financial structure is best for an individual family, it has been suggested that an unenforceable support duty should be enacted to promote the stability of families.[188] A symbolic law would allow the state to encourage marital support without legally interfering in a couple's financial decisions.[189] Even this, however, seems unnecessary because married couples will continue to share expenses and support one another out of love and tradition, regardless of any input from the state. "No one contends that the threat of liability under the doctrine of necessaries motivates spouses to provide for one another. Surely only a very few spouses know that it exists."[190]

IV. CONCLUSION

While abrogation of the necessaries doctrine may seem a harsh result to creditors and an unromantic view of spousal support, it affords more respect to the rights of married individuals than the alternatives. First, imposing joint and several liability provides far more protection to creditors than to families. It allows creditors complete discretion when collecting a debt because liability attaches to either spouse, no matter which spouse incurred the expenses. Likewise, imposing primary liability on the spouse who incurred the debt is an inadequate alternative because it relies too heavily on the partnership theory of marriage, a theory that ignores the autonomy of the individual and family in allocating financial resources. Lastly, imposing primary liability on the husband is also inappropriate because it ignores the equal protection issue created by a gender-based rule.

The Florida Supreme Court was correct in its assertion that a lack of consensus existed regarding the doctrine of necessaries. Although the court stated that its decision was not a comment on which policy the state should adopt, the Florida Legislature should consider abrogation to be the best alternative and refuse to codify any form of the doctrine. While Florida's decision to abrogate may place it in the minority, the Florida Legislature would not be alone in refusing to codify the doctrine. Furthermore, those states that have reaffirmed or codified the doctrine in its original form should follow Florida's lead by abolishing this outdated and unnecessary law. No form of the doctrine, whether it imposes joint and several liability, primary liability on the spouse who incurred the debt, or primary liability on the husband, is an acceptable alternative in a rapidly changing society in which families should be free to merge or separate their financial resources as they deem fit.