110 A.L.R.5th 371, *
American Law Reports 5th
? 2003 West Group
? 2004 West Group - Updated December 2003
INTENTIONAL INFLICTION OF DISTRESS IN MARITAL CONTEXT
George L. Blum, J.D.
110 A.L.R.5th 371
SUMMARY: Recovery of emotional distress damages is permitted by many jurisdictions in cases of intentional torts. Damages for purely psychological injuries are recoverable if a defendant's conduct is gross and wanton, malicious, willful or wanton, indifferent, or reckless and was directed toward the plaintiff. Further, one who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm. A number of such cases have arisen in the marital context. In McCulloh v. Drake, 2001 WY 56, 24 P.3d 1162, 110 A.L.R. 5th 741 (Wyo. 2001), for example, the court held that a wife would be able to bring a claim for intentional infliction of emotional distress based upon the physical and sexual abuse committed against her by her spouse notwithstanding the marital relationship between the aggressor and the victim. This annotation collects and analyses the state and federal cases in which the courts have discussed one party's action for intentional infliction of emotional distress in the marital setting.
LEAD CASE: McCulloh v. Drake, 2001 WY 56, 24 P.3d 1162, 110 A.L.R. 5th 741 (Wyo. 2001)
JURISDICTIONAL TABLE OF CASES and STATUTES
INDEX OF TERMS
ENCYCLOPEDIAS, TREATISES, and SPECIALIZED SERVICES
LAW REVIEW ARTICLES
[*I] PRELIMINARY MATTERS
This annotation collects and analyses the state and federal cases in which the courts have discussed one party's action for intentional infliction of emotional distress in the marital setting. Included are actions brought by one current spouse against the other current spouse or by an ex-spouse against the other ex-spouse.
Interspousal immunity is beyond the scope of this annotation, as is the subject of the status of interspousal immunity in personal injury and wrongful death actions. n1 Also excluded are cases involving actions brought by or against paramours or cohabitants who are not legally married.
A number of jurisdictions may have rules, regulations, constitutional provisions, or legislative enactments bearing on this subject; since these are discussed herein only to the extent that they are reflected in the reported cases within the scope
of this annotation, the reader is advised to consult the appropriate statutory or regulatory compilations.
[*1b] Related annotations
Right to Workers' Compensation for Emotional Distress or Like Injury Suffered by Claimant as Result of Nonsudden Stimuli--Right to Compensation Under Particular Statutory Provisions. 97 A.L.R.5th 1.
Recovery Under State Law for Negligent Infliction of Emotional Distress Under Rule of Dillon v. Legg, 68 Cal. 2d 728, 69 Cal. Rptr. 72, 441 P.2d 912 (1968), or Refinements Thereof. 96 A.L.R.5th 107.
Bystander Recovery Under State Law for Emotional Distress from Witnessing Another's Injury in Products Liability Context. 90 A.L.R.5th 179.
Recovery Under State Law for Negligent Infliction of Emotional Distress Due to Witnessing Injury to Another Where Bystander Plaintiff Must Suffer Physical Impact or Be in Zone of Danger. 89 A.L.R.5th 255.
Right to Workers' Compensation for Emotional Distress or Like Injury Suffered by Claimant as Result of Sudden Stimuli Involving Nonpersonnel Action--Right to Compensation Under Particular Statutory Provisions and Requisites of, and Factors Affecting, Compensability. 83 A.L.R.5th 103.
Right to workers' compensation for emotional distress or like injury suffered by claimant as result of sudden emotional stimuli involving personnel action. 82 A.L.R.5th 149.
Sufficiency of allegations or evidence of victim's mental injury or emotional distress to support charge of aggravated degree of rape, sodomy, or other sexual offense. 44 A.L.R.5th 651.
Fraud actions: right to recover for mental or emotional distress. 11 A.L.R.5th 88.
Divorce and separation: award of interest on deferred installment payments of marital asset distribution. 10 A.L.R.5th 191.
Divorce and separation: consideration of tax consequences in distribution of marital property. 9 A.L.R.5th 568.
Liability of insurer, or insurance agent or adjuster, for infliction of emotional distress. 6 A.L.R.5th 297.
Joinder of tort action between spouses with proceeding for dissolution of marriage. 4 A.L.R.5th 972.
Divorce property distribution: treatment and method of valuation of future interest in real estate or trust property not realized during marriage. 62 A.L.R.4th 107.
Divorce property distribution: real estate or trust property in which interest vested before marriage and was realized during marriage. 60 A.L.R.4th 217.
Liability of employer, supervisor, or manager for intentionally or recklessly causing employee emotional distress. 52 A.L.R.4th 853.
Existence of spousal privilege where marriage was entered into for purpose of barring testimony. 13 A.L.R.4th 1305.
Modern status of interspousal tort immunity in personal injury and wrongful death actions. 92 A.L.R.3d 901.
Recovery by debtor, under tort of intentional or reckless infliction of emotional distress, for damages resulting from debt collection methods. 87 A.L.R.3d 201.
Recovery for mental or emotional distress resulting from injury to, or death of, member of plaintiff's family arising from physician's or hospital's wrongful conduct. 77 A.L.R.3d 447.
Recovery of damages for emotional distress resulting from racial, ethnic, or religious abuse or discrimination. 40 A.L.R.3d 1290.
Recovery for negligent or intentional infliction of emotional distress under Jones Act (46 App. U.S.C.A. ? 688) or under Federal Employers' Liability Act (45 U.S.C.A. ? ? 51 et seq.). 123 A.L.R.Fed. 583.
Recovery of damages for infliction of emotional distress under Federal Tort Claims Act (28 U.S.C.A. ? ? 2671 to 2680). 107 A.L.R.Fed. 309.
Marital privilege under Rule 501 of Federal Rules of Evidence. 46 A.L.R.Fed. 735.
[*2] Summary and comment
As a general matter, some jurisdictions hold that, to support an award of damages, mental anguish or emotional distress need not be accompanied by physical injury. However, in other jurisdictions, recovery for emotional injury is limited to those plaintiffs who sustain a physical injury as a result of a defendant's negligent conduct or where there is a physical impact. A matter traditionally given weight in cases denying the right to maintain an action predicated upon mental disturbance alone is that any other rule would lead to a rapid and intolerable proliferation of litigation to be handled
by the courts, or to finely drawn distinctions and inharmonious results. However, some courts have taken the view that the possibility of increased litigation should not deter courts from giving injured persons the full measure of justice to which they are entitled, as freedom from mental distress is considered a protected interest, and the problems of vexatious suits and fictitious claims should not preclude meritorious claims with some guarantee of genuineness in circumstances of case. Further, the mere possibility of fraud, extra litigation, or a measure of speculation is no reason for a court to eschew a measure of its jurisdiction. n2
Recovery of emotional distress damages is permitted in cases of intentional torts. Damages for purely psychological injuries are recoverable if a defendant's conduct is gross and wanton malicious, willful or wanton, indifferent, or reckless and was directed toward the plaintiff. Further, one who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm, which is the position of the Restatement (Second) of Torts. Thus, for example, where bodily harm is required to recover for mental or emotional disturbances, a claim for the intentional infliction of emotional distress may be established by showing that the defendant's conduct was extreme and outrageous, the defendant acted in an intentional or reckless manner, and the defendant's acts caused the plaintiff severe emotional distress that resulted in bodily harm. The view has been expressed that the less extreme the outrage giving rise to a claim of intentional infliction of emotional distress, the more appropriate it is to require evidence of a physical injury or illness from the emotional distress. n3
To recover for the intentional infliction of emotional distress in jurisdictions not requiring bodily injury, the plaintiff must show that: (1) the conduct of the defendant was intentional or in reckless disregard of the plaintiff; (2) the conduct was extreme and outrageous; (3) there was a causal connection between the defendant's conduct and the plaintiff's mental distress; and (4) the plaintiff's mental distress was extreme and severe. Liability for intentional infliction of emotional distress extends to situations in which there is no certainty, but merely a high degree of probability, that the mental distress
will follow, and the defendant goes ahead in conscious disregard of it. When the defendant is in a peculiar position to harass the plaintiff and cause emotional distress, his or her conduct will be carefully scrutinized by the courts in determining whether it constitutes intentional infliction of emotional distress. The rule allowing recovery of damages for mental anguish and suffering in cases involving willful, wanton, and malicious acts is especially applicable in cases affecting the liberty, character, reputation, personal security, or domestic relations of the injured party. n4
There is no liability for intentional infliction of emotional distress where an actor was exercising his or her legal rights. It has also been held in one jurisdiction that no intentional infliction of emotional distress claim will lie where the conduct
underlying the claim falls within the ambit of traditional tort liability. n5
The common law established interspousal tort immunity as a consequence of the legal identity of husband and wife: the husband and wife were one person, and that person was the husband, so it was both morally and conceptually objectionable to permit a tort suit between spouses. The doctrine has been justified on the grounds that immunity is necessary to preserve marital harmony by shutting off interspousal disputes and to prevent fraud and collusion between parties to an interspousal suit. Common-law interspousal tort immunity has withstood a variety of constitutional challenges relating to due process, equal protection, and the availability of remedies generally. n6
In some jurisdictions, the common law relating to interspousal immunity has been judicially abrogated or modified. Other authority, however, holds that such change is outside the sphere of proper judicial action and that any change in the common-law rule is a matter for the legislature. Courts willing to abrogate the doctrine have done so on the grounds that interspousal immunity can no longer be regarded as necessary or effective for promoting domestic tranquility and preventing marital discord, or to prevent fraud and collusion between husband and wife in bringing a tort action. Some jurisdictions, in abrogating or limiting interspousal immunity, have relied on the principle that any person injured by the act of another should, in the absence of a statute or compelling reasons of public policy, be afforded a remedy in the courts. Under this view, a criminal prosecution or an action for a divorce and alimony is not an adequate remedy in lieu of a tort action for damages. n7
It has been held that abrogation of interspousal tort immunity would be problematic in a community property state, because damages for personal injuries to a spouse are community property. Other authority, however, holds that the status of damages as community property is not an insuperable obstacle to the abandonment of interspousal tort immunity. n8
In jurisdictions adhering to the doctrine of interspousal tort immunity, the doctrine bars personal injury actions for a tort committed during coverture even though the marriage is subsequently annulled, or the parties have since separated or divorced. The doctrine also bars actions for torts committed while the parties are separated, on the ground that the legal fiction of marital unity has not yet been dissolved. However, some authority holds that the doctrine does not apply where the parties have divorced before the action was commenced, on the grounds that an action for a post-marital tort would not jeopardize marital harmony; any concerns for marital harmony and collusion between the parties are canceled by a divorce. n9
It has been held that where the causes of action for alienation of affections and criminal conversation have been abolished, a plaintiff cannot mask one of the abolished actions behind a common-law label such as intentional infliction of emotional distress, intentional interference with the marital relationship, or loss of consortium based on negligent counseling. However, if the essence of the complaint is directed to a cause of action other than one that is abolished, it is legally recognizable. In such circumstances, the court must review the legal sufficiency of the claim to determine if it states, as a matter of law, a claim upon which relief may be granted. n10 The issue also arises as to the viability of an intentional infliction of emotional distress claim in the marital context. Such distress claims have been generally brought in conjunction with an underlying claim.
The courts have held that recovery by one spouse as against the other for intentional infliction of emotional distress was allowed or would be supportable upon remand, in cases where the underlying claim involved a dispute concerning the paternity of a child to the marriage ( ? 3[a] ), interference with parental rights ( ? 4[a] ), assault and battery ( ? 6[a] ),
threatening or harassing behavior ( ? 8[a] ), unprotected sexual relations putting the other spouse at risk ( ? 10[a] ), concealment of the value of marital assets by one of the spouses ( ? 12[a] ), fraud ( ? 15[a] ), invasion of privacy ( ? 16[a] ), and the filing of police reports ( ? 18[a] ), though other courts, given the particular circumstances presented therein, have ruled to the contrary (? ? 3[b], 4[b], 6[b], 8[b], 10[b], 12[b], 15[b], 16[b], 18[b]).
The courts have also held that recovery for an intentional infliction of emotional distress claim brought by a spouse or former spouse would not be possible, or that a claim for distress would be barred due to statutory, public policy, or other grounds, in cases where the distress claim was related to a spouse's child support obligations ( ? 5 ), verbal abuse ( ? 7 ),
act of adultery ( ? 9 ), a dispute over marital agreements ( ? 14 ), or conversion ( ? 13 ).
In other cases, the courts allowed recovery on a spouse's or former spouse's intentional infliction of emotional distress claim, or held that such a claim would be supportable, where the claim was related to claims that one spouse imposed "deviate" sexual acts upon the other ( ? 11 ), involved defamation ( ? 17 ) or conspiracy to murder ( ? 19 ), or concerned
one spouse's purported interference with the employment of the other spouse ( ? 20 ). Judicial authority has considered issues of causation concerning intentional infliction of emotional distress claims in the marital context ( ? 21 ).
[*2b] Practice pointers
A trier of fact is free for the purposes of the tort of intentional infliction of emotional distress to discredit the defendant spouse's protestations that no harm was intended by his or her actions and to draw inferences necessary to establish intent. n11
Issues of venue may arise when an intentional infliction of emotional distress claim is brought in the context of a divorce action. In one case, for example, venue for an intentional infliction of emotional distress claim brought against a plaintiff's former husband and his paramour for acts occurring during the marriage was held by the court not limited to the
county in which the divorce was granted, the court holding instead that the suit could be filed in any county in which all or part of the cause of action accrued. n12
At least one court has held that an attorney who was prosecuting an action against his spouse for, inter alia, intentional infliction of emotional distress, would not be allowed to represent himself pro se while the couple continued to live together as husband and wife. n13
It should be pointed out that intentional infliction of emotional distress and alienation of affections are two distinct causes of action. Under the former, a plaintiff must establish that the tort is intentional or reckless, the tortfeasor's conduct
is outrageous and intolerable, the wrongful conduct and the emotional distress are causally connected, and the emotional distress is severe. To recover for the tort of alienation of affections, outrageous and intolerable conduct or a showing of severe emotional distress are typically not prerequisites for recovery. Instead, a plaintiff need only show a "malicious" or unjustifiable interference or an intention that such interference resulted in the loss of affection. Unlike the tort of intentional infliction of emotional distress, alienation of affections also has required an existing family relationship. Hence, not only are the elements of the two causes of action different, but intentional infliction of emotional distress implies a higher burden of proof than alienation of affections. n14 In cases of intentional infliction of emotional distress requiring proof of conduct regarded as atrocious and utterly intolerable in a civilized community, the burden is sufficiently high that only extreme and outrageous misconduct will justify even minor compensatory damages. n15
In at least some jurisdictions, an ex-spouse pursuing a claim of intentional infliction of emotional distress against another spouse cannot recover punitive damages, the courts reasoning that as the cause of action for intentional infliction of emotional distress is typically based upon a claim of "outrageous conduct," the rendition of compensatory damages in such a case would be sufficiently punitive. n16 Other courts, however, allow for an award of both compensatory and punitive damages to a former spouse seeking recompense for, inter alia, intentional infliction of emotional distress. n17
It has been noted that conduct that may be tortious between strangers may not be tortious between spouses because of the mutual concessions implied in the marital relationship. That is, some courts have commented that acts that are reasonable in view of the close relation and carelessness in the operation of the home or in common activities should be distinguished from conduct not so referable and that would be actionable if the parties were not husband and wife. The concept of consent has a broad application when a tort is alleged in the marriage context. n18
In at least some jurisdictions, the circuit court, rather than the chancery court, has jurisdiction of intentional infliction of emotional distress claims, including those involving spouses and former spouses. n19
In actions for assault, battery, and intentional infliction of emotional distress in connection with an individual's abusive treatment of a plaintiff, it has been held by some courts that evidence of acts committed by the defendant beyond the scope of the statute of limitations may be admissible, not for the purpose of proving that the defendant had bad character and that he acted in conformity with that bad character when committing charged acts, but for the purpose of establishing the defendant's intent or relationship between the parties. n20
In certain circumstances, a spouse's claim for intentional infliction of emotional distress may be precluded by a settlement agreement entered into between the spouses to a settlement agreement. In one case, for example, the settlement agreement between a husband and wife read as follows: "This Agreement constitutes a full and complete settlement of the alimony, support, equitable distribution and property rights of the parties and claims of any nature whatsoever that each may have against the other, and all of the terms and provisions herein being interrelated and dependent covenants and that such constituting a complete Property Settlement Agreement. No oral or prior written matters extraneous to this Agreement shall have any force or effect whatsoever and the parties represent that no representations have been made by each to the other except as incorporated in this Agreement. No addendum, modification or waiver of any of the terms of this Agreement shall be effective unless in writing, signed by both parties.
. . .
RELEASE OF ALL CLAIMS: The Husband and Wife mutually forever renounce and relinquish all claims of whatever nature each may have had in or to any assets/property or estate of whatever kind, now or hereafter owned or possessed by the other, it being the intention of the parties hereto that this paragraph shall constitute a complete, general, and mutual release of all claims whatsoever including dower, courtesy, distributive share of which either may have in the estate of the other excepting as set forth herein." n21
A "domestic relations" exception to diversity jurisdiction exists for cases in which the plaintiff is seeking in federal district court one or more of the distinctive forms of relief associated with the domestic relations jurisdiction, such as the
granting of a divorce or an annulment, an award of child custody, a decree of alimony, or child support. The penumbra of the exception consists of ancillary proceedings, such as a suit for the collection of unpaid alimony, that state law would require be litigated as a tail to the original domestic relations proceeding. This exception, it should be noted, may allow a spouse to bring an intentional infliction of emotional distress claim against a spouse or former spouse in federal court. n22
Generally, a cause of action for intentional infliction of emotional distress may be brought in a divorce proceeding, the reasoning being that the tort and divorce action should be resolved in the same proceeding, and when the fact finder awards tort damages to the divorcing spouse, the court may not consider the same tortious acts when dividing the marital estate. n23
It should be noted that claims have been brought by children against a parent for intentional infliction of emotional distress due to the parent's purported actions against the other parent and the child while the child's parents were still married. n24 In at least some jurisdictions, it should be noted, judicial decisions abrogating the doctrine of interspousal immunity have been applied retroactively to permit spouses to sue other spouses for conduct occurring prior to the date of the judicial pronouncement. n25
A spouse's intentional infliction of emotional distress claim against the other spouse may arise in a bankruptcy proceeding. For example, in one case involving a husband's Chapter 11 proceeding, the bankruptcy court found that claims asserted by the wife for equitable distribution of marital property had not been discharged, but that the claims asserted by the wife for damages sounding in tort under the theory of intentional infliction of emotional distress had been discharged. n26
Typically, the elements of the tort of intentional infliction of emotional distress are: the defendant acted intentionally or recklessly; the conduct was extreme and outrageous; the actions of the defendant caused the plaintiff emotional distress; and the emotional distress was severe. "Emotional distress" has been held to include all highly unpleasant mental reactions, but the law intervenes to award damages for intentional infliction of emotional distress only where the distress is so severe that no reasonable person should be expected to endure it, and the intensity and duration of the distress are factors to be considered in determining its severity, and often the extreme and outrageous character of the defendant's conduct is important in establishing that the distress existed. n27 Generally, "intentional" conduct for the purposes of the tort of intentional infliction of emotional distress requires a showing that the actor desired consequences of his or her act. "Intent" for the purposes of an intentional infliction of emotional distress claim may be inferred from the circumstances of the case and the conduct of the actor, not just from the overt expressions of the intent by the actor. Moreover, an actor is considered to have been "reckless" for the purposes of the tort of intentional infliction of emotional distress when he or she knows or has reason to know of facts that create a high degree of risk of harm to another, and deliberately proceeds to do the act in conscious disregard of, or indifference to, that risk. n28
It should be noted that the defense of interspousal tort immunity must be affirmatively pleaded and may be waived by failure to include it in the answer. n29 The abrogation of interspousal immunity typically does not affect any immunity that exists by virtue of other rules of law; thus, for example, a spouse who is a public official and who commits a discretionary act that injures his wife enjoys whatever immunity is granted to public officials generally under such circumstances, and is not stripped of such immunity merely because of his marital relationship. n30 Counsel should always consult the statutes of the relevant jurisdiction, as some states have enacted statutes specifically resolving particular questions as to the parameters of interspousal immunity. n31
Although certain jurisdictions agree that an emotional disturbance must result in physical injury in order to be recoverable, some of these jurisdictions allow recovery for physical injuries produced as a result of emotional distress in the absence of physical impact causing the emotional injury in the first place, while others require a plaintiff to demonstrate that he or she suffered some direct physical impact. Also, in some jurisdictions, either a physical impact or emotional distress causing a physical injury or illness must be shown. n32
Some jurisdictions set a very high standard for the tort of "outrage." Courts are reluctant to allow recovery under the banner of intentional infliction of emotional distress absent a deliberate and malicious campaign of harassment or intimidation. n33
[*II] PATERNITY, INTERFERENCE WITH PARENTAL RIGHTS, AND CHILD SUPPORT ISSUES
[*3] Paternity of child of the marriage
[*3a] Recovery allowed or supportable
The courts in the following cases held that a spouse or former spouse would be entitled to bring an intentional infliction of emotional distress claim against the other spouse, or that such a claim would be supportable and amenable to proof upon remand, where the distress claim was related to a dispute or uncertainty over the paternity of a child of the marriage.
A former spouse would be entitled to bring a tort action against his former wife, seeking recovery under theories of misrepresentation and infliction of emotional distress, based upon the former wife's misrepresentation of paternity of the children born during the marriage, the court held in G.A.W., III v. D.M.W., 596 N.W.2d 284 (Minn. Ct. App. 1999). Subsequent to the dissolution of their marriage, a former husband brought a tort action against his former wife, seeking recovery under theories of fraud, negligence, and negligent and intentional infliction of emotional distress for the former wife's misrepresentations concerning the paternity of children born during the marriage; the lower tribunal entered judgment in favor of the former wife, and the court, on review of the husband's appeal, held, inter alia, that it was not against public policy of the state to allow an interspousal tort action contemporaneous with or subsequent to a marital dissolution proceeding. The claims raised by the plaintiff husband involved recognized torts, the court remarked, and, because interspousal immunity would not apply, there was no recognized legal barrier preventing a person from bringing fraud, misrepresentation, or infliction of emotional distress claims against his or her current or former spouse. Moreover, the court stated, the question of whether misrepresentation of paternity can support those claims goes to whether the elements of each tort are met, not whether the conduct occurred during a marriage. Therefore, the court concluded, the lower tribunal erred by dismissing the plaintiff's claims as against public policy, the court reversing the lower tribunal's award of costs to the defendant, since the defendant should not have prevailed on res judicata or collateral estoppel grounds. Neither collateral estoppel, res judicata, nor public policy considerations barred the plaintiff's interspousal tort claims for intentional infliction of emotional distress, the court stated.
According to the court in Koepke v. Koepke, 52 Ohio App. 3d 47, 556 N.E.2d 1198 (6th Dist. Wood County 1989), jurisdictional motion overruled, 49 Ohio St. 3d 708, 551 N.E.2d 1304 (1990), a case in which a husband sued a wife for intentional infliction of emotional distress based on revelations made by wife in connection with their divorce related to the paternity of their child, the lower tribunal's order dismissing the action would be reversed and the husband would be allowed to pursue his distress claim. The evidence presented indicated that while the plaintiff and defendant were married, the defendant gave birth to a child; throughout the marriage, the plaintiff believed that he was the father of the child, and he consequently developed an emotional attachment to the child and incurred all of the usual expenses involving in raising a child. The defendant subsequently filed a complaint for divorce and, in the complaint, announced for the first time that the child was not the plaintiff's son; the plaintiff thereafter filed a complaint against the defendant for intentional infliction
of emotional distress as a result of the defendant's "untimely revelation" regarding the child. The action was transferred to the judge assigned to the parties' divorce action, and the lower tribunal granted the defendant wife's motion to dismiss; the court, on review of the husband's appeal, reversed. The court agreed with the plaintiff's argument that his cause of action for intentional infliction of emotional distress should have been considered separately from the divorce proceeding, the court reasoning that, historically, divorce law has resembled tort law. Clearly, it is inconsistent to combine intentional tort
claims with divorce actions since a party to a divorce cannot recover damages, the court pointed out, whereas the main objective behind tort litigation is the recovery of damages. Moreover, there is no right to a jury trial in a divorce proceeding, the court remarked, such that spouses who wish to bring an action in tort separate from their divorce action inadvertently lose their right to a jury trial for the tort claim when a court chooses to combine the two causes of action. The
court remarked that the plaintiff correctly asserted that nothing would prevent him from bringing an intentional tort claim against an unrelated third person, the court explaining that there is no reason why the husband or wife should not have the same remedies for injuries inflicted by the other spouse that the courts would give them against other persons. It is true, the court acknowledged, that almost all divorce actions involve some form of emotional distress, but, nonetheless, in recognizing the independent tort of emotional distress the state supreme court has specifically stated that the harm involved must be serious, a high burden of proof that would help to discourage parties from bringing suits involving ordinary or frivolous claims for emotional distress.
An ex-husband stated sufficient facts upon which reasonable people could conclude that the conduct of his ex-wife and her parents was extreme and outrageous, so as to support his claim of intentional infliction of emotional distress by, inter alia, misrepresenting that the ex-husband was the father of the child to the marriage, the court held in Miller v. Miller,
1998 OK 24, 956 P.2d 887 (Okla. 1998). Pursuant to , the court commented, an action for intentional infliction of emotional distress will lie only where there is extreme and outrageous conduct coupled with severe emotional distress, the court adding that intentional infliction of emotional distress does not provide redress for every invasion of emotional serenity or every anti-social act, and it does not protect mere hurt feelings, no matter how justified. It is the trial court's
responsibility initially to act as gatekeeper, the court pointed out, that is, to determine whether the defendant's conduct
may reasonably be regarded as sufficiently extreme and outrageous to meet the Restatement standards, and only when it is found that reasonable people would differ in an assessment of this central issue may the tort of intentional infliction of emotional distress be submitted to the jury. In the instant case, the court related, the lower tribunal did not specifically address the issue of the outrageousness of the defendants' conduct when it dismissed the plaintiff's action for failure to state a claim, and the parties' briefs below were limited to arguments addressing the statutory and preclusion bar and did not discuss outrageousness or any other aspect of the tort of intentional infliction of emotional distress. The intermediate appellate tribunal, the court remarked, upheld the trial court's dismissal of the plaintiff's theory of intentional infliction of
emotional distress, not based on the preclusion doctrine, but rather because, in its view, the defendants' conduct failed to cross the threshold degree of outrageousness necessary to proceed with this tort. The state supreme court, on review, disagreed and held that the plaintiff stated sufficient facts upon which reasonable people could conclude that the defendants' conduct was indeed extreme and outrageous. That is, the court observed, the plaintiff alleged that the spouse told of a premarital falsehood going to the heart of the marital and parental relationship, a falsehood that was implicitly repeated every day until the defendants decided the falsehood was no longer useful to them, that this caused him to develop a parental relationship with the child, believing that child to be his biological offspring, and that the plaintiff was
used to fulfill the emotional, physical, and financial obligations of a husband for almost five years and of a father for 15 years, the defendants knowing that these obligations were not really his. Whether the plaintiff could prove these allegations, as well as prove the other elements of the tort and whether a jury would in fact find such conduct extreme and outrageous were questions that could be resolved upon remand, the court concluding that where reasonable people may differ on this issue, the threshold has been crossed and dismissal is improper.
[*3b] Recovery not allowed or barred
The courts in the following cases held that a spouse or former spouse would not be entitled to bring an intentional infliction of emotional distress claim against the other spouse, or that such a claim was barred on statutory, public policy, or other grounds, where the distress claim was related to a dispute or uncertainty over the paternity of a child of the marriage.
Despite the fact that a former husband developed a close relationship with a child misrepresented to him by his wife to be his own child and performed parental acts for that child, he did not have compensable "damages" as was required for the former husband's intentional infliction of emotional distress actions against the wife based on the misrepresentation of paternity, the court held in Nagy v. Nagy, 210 Cal. App. 3d 1262, 258 Cal. Rptr. 787 (2d Dist. 1989). A former husband appealed from an order of the lower tribunal that dismissed his actions for fraud and intentional infliction of emotional distress brought against his former wife based on the fact that he was not the father of the couple's child, as the wife had represented to him; the court, on review, affirmed. It is well-established under California law that one can sue a spouse for an intentional tort, the court related, such that the issue in the instant matter was whether the plaintiff successfully pled causes of action for intentional infliction of emotional distress and fraud and, if so, whether or not there was a compelling statutory or public policy reason not to allow compensation for the alleged injuries. Here, the court pointed out, an action for fraud would be contrary to public policy, the court reasoning that allowing a nonbiological parent to recover damages for developing a close relationship with a child misrepresented to be his and performing parental acts is not a "damage" that should be compensable under the law. One of the elements of the tort of intentional infliction of emotional distress, the court continued, is outrageous conduct by the defendant, and it must also appear that the defendant's conduct was unprivileged, the court elaborated. The court indicated that Cal. Civ. Code ? 47 provides an absolute privilege for a publication in any judicial proceedings, and neither actual malice nor falsehood will defeat the privilege so long as the statement has any reasonable connection with a legal action and is made in furtherance of the litigation. The statutory privilege accorded to statements made in judicial proceedings applies to virtually all other causes of action, with the exception of an action for malicious prosecution, as a result of which the privilege will defeat claims of invasion of privacy and intentional infliction of emotional distress. In the instant case, the court emphasized, the plaintiff learned about the falsity of the defendant's representation that he was the father of the child during a deposition being conducted in the dissolution proceeding, and since the plaintiff had stated that the child was his son in his response to the defendant's dissolution petition, the defendant's statement had a reasonable connection to a legal action, the dissolution proceeding. The court commented that since the plaintiff's emotional distress was predicated on the defendant's statement and the statement itself was alleged to be tortious, no matter what the defendant's motives may have been, her statement was privileged under Cal. Civ. Code ? 47. The court further rejected the plaintiff's argument that he suffered emotional distress due to the defendant's conduct during the marriage, the court reasoning that in order to suffer emotional distress from the defendant's conduct, it was necessary for the plaintiff to know about it.
According to the court in Doe v. Doe, 358 Md. 113, 747 A.2d 617 (2000), the facts of which are more fully discussed at ? 9 , a husband's claims seeking damages for intentional infliction of emotional distress resulting from his wife's purported misrepresentation of paternity of the children born during the marriage were not viable because the plaintiff husband sought to recover damages, under different tort labels, for the same type of conduct that formerly gave rise to a common-law cause of action known as criminal conversation, an action that had been abolished.
In Day v. Heller, 264 Neb. 934, 653 N.W.2d 475 (2002), the court held that to allow a former husband's claim for intentional infliction of emotional distress seeking recovery for emotional harm he suffered when the former wife's misrepresentation and concealment of the true biological fatherhood of their purported child born during their marriage threatened to destroy the husband's parent-child relationship with the child was contrary to public policy. Although the parties had been married more than nine months before the child's birth, the ex-husband had been forced to spend a considerable time away from the ex-wife not long after the marriage. The ex-wife had represented to the ex-husband that her pregnancy had been extraordinarily protracted, and that the child had been conceived prior to the ex-husband's forced absence. After the parties' divorce, the ex-husband learned that a pregnancy of the purported length of this one was extremely unlikely, and sought DNA testing, which revealed an almost zero probability that he was the child's biological father. As the court read the petition, the ex-husband arguably made claims either for the creation of a falsely based parent-child relationship or for the wrongful destruction of such a relationship that, while not biologically valid, was emotionally important to both the ex-husband and the putative son. The court said that in essence, the first claim was for the ex-wife's misrepresentation that led the ex-husband to make investments of time, emotion, and money in the child that he would not have made had he known that the child was not his biological son. In effect, the court said, the ex-husband was saying, "He is not my son; I want my money back." This cause of action, the court said, focused on the burdens of the parent-child relationship, while ignoring the benefits of the relationship. The court declared that it did not believe that having a close and loving relationship "imposed" on one because of a misrepresentation of biological fatherhood was the type of "harm" that the law should attempt to remedy. Moreover, the court added, a claim that seeks to recover for the creation of a parent-child relationship has the effect of saying "I wish you had never been born" to a child who, before the revelation of biological fatherhood, was under the impression that he or she had a father who loved him or her. Finding more difficulty in the interpretation of the complaint based on the destruction of the parent-child relationship, the court acknowledged that having a close and loving parent-child relationship suddenly destabilized by a revelation that there is no biological relationship has the potential to cause grief, anxiety, shock, and fear. However, the court noted, it does not lie within the power of any judicial system to remedy all human wrongs, and to attempt to correct such wrongs or give relief from their effects may do more social damage than if the law leaves them alone. The court thus concluded that no cause of action for intentional infliction of emotional distress should be recognized under the circumstances of this case.
A husband was not precluded from bringing a claim for intentional infliction of emotional distress against his former wife relating to the severe emotional distress he sustained in finding out the child born during his marriage was not his biological child, though, given the particular circumstances presented, he could not recover any damages for such, the court held in Bailey v. Searles-Bailey, 140 Ohio App. 3d 174, 746 N.E.2d 1159 (7th Dist. Mahoning County 2000), appeal not allowed, 90 Ohio St. 3d 1484, 738 N.E.2d 1256 (2000). A former husband brought claims for intentional infliction of emotional distress against his former wife and her paramour, relating to his discovery that the paramour, rather than the former husband, was the biological father of a child born during the marriage. The lower tribunal adopted the magistrate's decision finding the former wife and the paramour jointly and severally liable for $ 45,000 in compensatory damages and $ 5,000 in punitive damages, and the court, on review of the cross-appeals taken, though holding that the husband had a right to bring the action, reversed, reasoning that the conduct of the former wife and paramour was not "extreme and outrageous." The court pointed out that a claim for the intentional infliction of emotional distress involving an extramarital affair is properly before a trial court provided that it is not a "disguised substitute" for one of the prohibited
amatory claims set forth in Ohio Rev.Code Ann. ? 2305.29 and if the harm to the claimant is serious. Here, the court elaborated, the husband's claim was based upon the severe emotional distress he sustained in finding out the child born during his marriage was not his biological child, and not on the fact that his wife was having an adulterous affair. Moreover, all parties conceded that the harm to the husband was severe and serious. Accordingly, his claim was properly considered by the trial court. However, the court elaborated, the husband would only be entitled to damages upon a showing that the conduct of the mother was "extreme" and "outrageous." While it is true that the wife could have informed her husband upon learning of her pregnancy that the baby might not be his, while it was possible that the husband would not have suffered as extremely had things been done differently and sooner, and while the length of her concealment might be characterized as unfair, unkind, or wrong, it could not be held that the failure to immediately act constituted extreme and outrageous conduct as necessary for a claim of intentional infliction of emotional distress. Only the most extreme wrongs, which do gross violence to the norms of a civilized society, will rise to the level of outrageous conduct,
and here, no evidence was presented at trial that demonstrated outrageous or atrocious conduct on the part of the former wife as a matter of law, the court concluded.
A husband's action against his estranged wife for deceit arising from her conduct in intentionally failing to tell him that a child born in wedlock was not his could not be maintained as matter of public policy, for the tort of intentional infliction of emotional distress is unavailable when it is predicated on conduct that leads to dissolution of marriage, the court held in Pickering v. Pickering, 434 N.W.2d 758 (S.D. 1989). A husband brought a suit for fraud and deceit and negligent misrepresentation against his estranged wife, for alienation of affections and for infliction of emotional distress. The lower tribunal granted summary judgment in favor of the wife and the court, on review of the husband's appeal, affirmed. With respect to the lower tribunal's granting of summary judgment in favor of the wife on the cause of action alleging intentional infliction of emotional distress, the court held that that tort should be unavailable as a matter of public
policy when it is predicated on conduct that leads to the dissolution of a marriage. Moreover, with respect to the husband's allegation of fraud and deceit against the wife, based on the assertion that the wife intentionally kept him "in the dark" regarding the true paternity of the child and caused him to "profess to his friends, family, and his church" that he was the child's natural father, as a result of which he suffered "untold humiliation, embarrassment, and emotional scarring," the court held that it did not need to determine whether the father established a prima facie case on this tort because his action for fraud and deceit also should be barred as a matter of public policy. Although agreeing with the father that his allegations normally would suffice to state a cause of action for fraud, the subject matter of the action was not one in which it was appropriate for the courts to intervene. The court reasoned that allowing the father to maintain his cause of action for fraud and intentional infliction of emotional distress could cause their child to suffer significant harm, for the child, who was, at the time of the hearing, three years old, should not be subjected to this type of "interfamilial warfare." The court stated that while it was not unsympathetic for the husband because of the embarrassment and humiliation he suffered, any attempts to redress this wrong could do more social damage than if the law merely left the matter alone.
[*4] Interference with parental rights
[*4a] Recovery allowed or supportable
The courts in the following cases held that a spouse or former spouse would be entitled to bring an intentional infliction of emotional distress claim against the other spouse, or that such a claim would be supportable and amenable to proof upon remand, where the distress claim was related to a dispute involving a purported interference with the claimant's parental rights.
The facts surrounding a former wife's continuing and successful effort to destroy and prevent the rehabilitation of a relationship between the former husband and the parties' son supported a claim for intentional infliction of emotional distress, the court held in Raftery v. Scott, 756 F.2d 335 (4th Cir. 1985). The federal district court rendered judgment for the former husband in his suit for damages and the court, on review of the wife's appeal, affirmed. The court agreed with the husband's assertion that the facts, presented independently, supported a claim for intentional infliction of emotional distress, the court reasoning that the fact that a tort may have overtones of affection alienation does not bar recovery on the
separate and distinct accompanying wrongdoing. The court commented that there might have been, in the instant case, no diminution in the son's affection for the father, but, realizing that the father was not in a position to provide him a home, and appreciating that custody had been awarded to the mother, the son might have concluded that his best interests dictated a display by him of an assumed indifference towards, even dislike for, his father to make life more tolerable at home. That is, the court elaborated, the unwarranted breach in the physical relationship and its resulting adverse impact on the father would have entitled the father to some damages, even if the affection of his son for him remained unabated. The court noted that without suggesting, in any way, that an action by the son could be maintained against the mother for the adverse consequences of the rupture she occasioned between father and son, still it seemed clear that, absent a bar for some reason, altogether independent of the alienation of affections contention, a cause of action should lie for psychological damage flowing from the enforced separation from the father, even or, indeed, especially if the affection of the father had in no way abated, an entirely plausible possibility. Thus, if such an action were indeed not maintainable, the reason would in no way be the supposed similarity of the claim to one for alienation of affections, the court remarked. The court rejected the mother's assertion that it was being asked to resuscitate the outlawed action for alienation of affections under the substitute label of intentional infliction of emotional distress. That is, the court explained, the differences in the
characteristics of, and of the proof to establish, the two torts served to dissipate the premise of the argument. Sufficient proof must be adduced of intentional infliction and something much more than simply aggravation must be shown to make out a case of emotional distress, the court related. The implicit threat of an avalanche of cases, arising whenever one parent makes an uncomplimentary remark about the other, was not perceived by the court as seriously undermining