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Can You Sue for Emotional Distress?
by James P. Reape, Esq. - The Reape - Rickett Law Firm

James P. Reape, Esq. - The Reape - Rickett Law Firm

Steven and Wendy married on January 1, 1990. On November 25, 1990, Wendy gave birth to a daughter, Stephanie. Unbeknownst to Steve, Wendy had been having a sexual relationship with a man named H.T., both before and during his and Wendy's marital relationship. It was through this liaison that Stephanie was conceived. Wendy learned of H.T.'s paternity one day after Stephanie's birth. Steve was not privy to this information, and Wendy did not make him aware. As a result, Steve believed Stephanie to be his natural daughter and he developed a close parental bond with her.

In mid 1993, Steve and Wendy separated. Steve filed a Petition for Dissolution of Marriage, and sought sole legal and physical custody of Stephanie. Wendy, in a malicious attempt to interfere with Steve's relationship with the child, told him Stephanie was not his child, but was a result of rape. At Wendy's suggestion, Steve took a blood test which confirmed his lack of paternity over Stephanie.

Further scheming to interfere with the relationship between Steve and Stephanie, Wendy attempted to introduce the results of the blood tests into the dissolution proceeding in order to challenge Steve's paternity. The Family Court, however, found Steve was entitled to the conclusive presumption of paternity, based on the fact that a child born to a married woman cohabiting with her husband is conclusively presumed to be a child of the marriage. This determination was affirmed on Wendy's appeal.

In July 1994, Steve filed a suit against Wendy alleging fraud, intentional infliction of emotional distress, and negligent infliction of emotional distress. Wendy objected to Steve's complaint, however, her objection merely contended Steve's cause of action for intentional infliction of emotional distress was barred by public policy. The trial court agreed with Wendy. Upon Steve's appeal, the appellate court affirmed the trial court's decision.

Public policy considerations which were ruled to have barred Steve's claim included an improper attempt by Steve to recover damages for the creation of a close and loving relationship between Steve and Stephanie, as well as Steve's claim that Wendy attempted to destroy the father/child relationship between him and Stephanie, and the possible adverse affects on Stephanie by her being dragged into the civil proceedings. The arena in which Steve's claims arose was a dissolution proceeding. Dissolution and custody proceedings are often fraught with emotionally charged issues and competing charges of impropriety. As married persons share an intensely personal and intimate relationship, when discord between them arises, it is inevitable that they will suffer distress.

Steve's claim, if allowed, would also contravene policies underlying California's abolition of Heart-Balm Actions, and causes of action for alienation of affection. The judiciary should not attempt to regulate all aspects of the human condition. Relationships can take varied forms, and this begets complications and entanglements which often defy reason.

"...Love has been known to last a lifetime, but it has also been known to be notoriously evanescent. These are matters better left to advice columnists than to judges and juries."

The California Appellate Court, in a two-to-one (2 to 1) decision, concluded the social good to be gained by allowing Steve's cause of action to proceed was outweighed by the adverse consequences. A tort action, such as Steve's , seldom, if ever, results in a benefit to the parties' child, and moreover, Wendy's conduct is similar to betrayal, for which the law wisely should not provide a remedy. The Appellate Court believed that to attempt to correct such wrongs, or to give relief from their effects, will do more social damage than if the law leaves them alone.

Just Marion Vogel dissented, stating she would not let Wendy use her daughter as a shield to escape liability for her tortuous behavior. She stated:

"While it may offend some to permit ex-spouses to sue each other in this context, I am far more offended by the majorities' decision to leave Steve without a remedy for the damage he allegedly has suffered as a result of Wendy's malicious misconduct. I find equally offensive, the undercurrent of paternalistic chauvinism running just beneath the surface of the case as relied on by the majority, about which I will say no more-- either you see it or you don't."

In California, the inability to sue your spouse (interspousal immunity) has long been abandoned. This does not mean spouses can sue each other for every intentional act which causes emotional injury to the other spouse.

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