Destefano v. Grabrian

Decision Date17 October 1988
Docket NumberNo. 86SC336,86SC336
PartiesRobert DESTEFANO and Edna Destefano, Petitioners, v. Dennis GRABRIAN and Diocese of Colorado Springs, Respondents.
CourtColorado Supreme Court

Peter A. Goldstein, P.C., Colorado Springs, for petitioner Robert destefano.

Ranson, Thomas & Yukawa, P.C., Richard Ranson, Colorado Springs, for petitioner Edna Destefano.

Kane and Donley, Thomas K. Kane, Colorado Springs, for respondent Dennis Grabrian.

Sparks, Dix, Enoch, Suthers & Winslow, P.C., John W. Suthers, L. Martin Nussbaum, Colorado Springs, for respondent Diocese of Colorado Springs.

ERICKSON, Justice.

Plaintiff-petitioner Robert Destefano (Robert) and crossclaimant-petitioner Edna Destefano (Edna) sought review of the court of appeals decision which affirmed the dismissal of their claims against respondents Dennis Grabrian (Grabrian), a Catholic priest, and the Diocese of Colorado Springs (diocese), and granted summary judgment. Destefano v. Grabrian, 729 P.2d 1018 (Colo.App.1986) (Sternberg, J., dissenting). We granted certiorari on two issues: (1) whether section 13-20-202, 6A C.R.S. (1987) (heart balm statute), bars an action against a person who assumes the role of marriage counselor when the counseling relationship results in consensual sexual relations between a counselor and a counselee; and (2) whether the free exercise clause of the first amendment to the United States Constitution prohibits tort liability for conduct which arose in the context of a counseling relationship between a clergyman and members of his congregation. The court of appeals reached the right result in affirming the dismissal of Edna's fifth crossclaim and Robert's first and second claims for relief. Based upon the record, the defendants' motions should not have been considered to be motions for summary judgment. Accordingly, we affirm the result in part, reverse in part, and return the case to the court of appeals with directions to remand to the trial court for further proceedings consistent with this opinion.


Robert filed a complaint naming as defendants his wife Edna; Grabrian, a Catholic priest for the diocese; and the diocese. Robert later filed an amended complaint which named only Grabrian and the diocese as defendants and sought no relief against Edna. Subsequently, Edna filed an answer and crossclaim 1 which was directed to the original complaint.

Grabrian and the diocese filed motions to dismiss for failure to state a claim upon which relief can be granted. C.R.C.P. 12(b)(5). 2 In considering such a motion, we are required to construe the allegations of the pleadings in the light most favorable to the plaintiff, and we must assume that the allegations contained in Robert's complaint and in Edna's cross-complaint are true. See Abts v. Board of Educ., 622 P.2d 518, 521 (Colo.1980); Bell v. Arnold, 175 Colo. 277, 281, 487 P.2d 545, 547 (1971). Whether any of Robert's and Edna's claims are true can only be resolved by a trial on the merits. Accordingly, we agree with the dissent in the court of appeals and hold that summary judgment should not have been granted. Destefano v. Grabrian, 729 P.2d 1018. The issue is whether the district court erred in dismissing Robert's claims and Edna's crossclaims for failure to state a claim upon which relief may be granted.

The complaint alleges that in 1979, Robert and Edna were having marital problems which led them to seek marriage counseling from Grabrian. The Destefanos were both Catholics who had "faith and confidence in their parish priest." Grabrian's supervisors knew or should have known that he was unsuited for marriage counseling and "would cause harm to a jeopardized marital relationship." To comply with church doctrine regarding marriage and divorce, the diocese encouraged its parishioners to participate in marriage counseling.

During the course of the counseling relationship, Grabrian developed a relationship with Edna, which "Grabrian knew or should have known would lead to additional marital problems between [Robert] and Edna." Grabrian knew that his intimate relationship with Edna probably would cause the dissolution of the Destefano marriage. Robert and Edna were told by Grabrian that he would act as their marriage counselor and that they could trust him. Grabrian's continued involvement in this relationship was occasioned by a reckless disregard for Robert's rights and feelings. The diocese owed a continuing duty to Robert and others similarly situated to reasonably train, interview, and supervise priests engaged in counseling married couples. With actual or constructive knowledge of Grabrian's prior indiscretions, the diocese willfully and recklessly breached its duty. Grabrian's conduct resulted in an intimate relationship between Grabrian and Edna that contributed to the dissolution of the Destefano marriage.

Based upon these allegations, Robert sought compensatory and exemplary damages for: (1) negligence against Grabrian for the manner in which he conducted the counseling and against the diocese on the theory of respondeat superior for failing to train, monitor, and supervise Grabrian adequately; (2) intentional infliction of emotional distress and outrageous conduct of both Grabrian and the diocese; and (3) Grabrian's breach of fiduciary duty. Due to the alleged willful and reckless nature of Grabrian's and the diocese's actions, Robert requested exemplary damages under each claim for relief.

In her crossclaim, Edna alleged the following facts that we will assume to be true in considering the motions to dismiss. Abts v. Board of Educ., 622 P.2d 518. Marital difficulties prompted the Destefanos to seek the assistance of a professional marriage counselor through St. Mary's Catholic Church, which was under the jurisdiction of the diocese. The Destefanos met on two occasions with Grabrian, who represented himself to be a professional with the necessary skills to assist people in need of professional marriage counseling. Grabrian agreed to assist them as a couple. Thereafter, Grabrian informed Robert that he should seek his own counselor. Grabrian represented to Edna that he was a capable, trained professional who could be relied upon to assist her with the serious marital and personal problems she was experiencing, and that she could trust him to act in her best interests. She in fact trusted him and followed his advice. Grabrian knew that his conduct with Edna would result in the collapse and dissolution of her marriage, and would cause the Destefanos extreme and permanent emotional suffering.

Knowing that Edna was "extremely vulnerable emotionally," Grabrian began a relationship with Edna which turned adulterous due to the actions of Grabrian. Grabrian had repeatedly engaged in sexual relations with other women similarly situated. Grabrian's past conduct was known or should have been known to the diocese. The actions of Grabrian and the diocese entitled Edna to compensatory and exemplary damages for their breach of fiduciary duty, negligence, and outrageous conduct.

The trial court granted the motions of Grabrian and the diocese to dismiss, finding that the issues raised by the Destefanos "are inextricably linked to questions of doctrine, theology, the usage and customs of the [Catholic] Church, written laws, and the fundamental organization of the Church." The trial court concluded that no compelling state interest warranted intrusion by the courts into the internal standards of the church. The trial court also stated that the Destefanos' claims are prohibited by section 13-20-201, 6 C.R.S. (1987). A divided panel of the court of appeals affirmed the trial court and concluded that both Robert's and Edna's claims were barred by the heart balm statute.


Robert and Edna contend that their claims are not barred by section 13-20-202, 6 C.R.S. (1987) (heart balm statute), which provides: "All civil causes of action for breach of promise to marry, alienation of affections, criminal conversation, and seduction are hereby abolished." 3 In Goldberg v. Musim, 162 Colo. 461, 427 P.2d 698 (1967), we addressed the issue of whether a complaint framed as an impairment of contract action was in fact a claim for alienation of affections prohibited by the predecessor to section 13-20-202, section 41-3-1, C.R.S. (1963). We said:

We agree with the trial court when it concluded that this complaint sets forth what in law is a claim for alienation of affections. The injury in such an action is one of loss of affection and consortium, including loss of society, companionship and aid. The action required on the part of a defendant in such a case is simply inducing the spouse of the plaintiff to leave, or, once having left, to remain separated from the plaintiff. The action necessarily involves intent to induce the spouse to separate.... [T]he facts alleged in ... the complaint place them squarely within the abolished action, for all that is alleged rises out of a relationship, i.e. an inducement to separate and resulting loss of society, loss of services, pain, suffering and humiliation.

Id. at 467, 427 P.2d at 701 (citations omitted). Goldberg, however, did not state that all cases that include elements of the abolished actions must be dismissed. In Goldberg we noted that the plaintiff's claim for fraudulent transfer of her husband's property was more appropriately heard in plaintiff's parallel action for separate maintenance. We did not state that the property claim fell within the statutory ban.

Here, the court of appeals relied upon Nicholson v. Han, 12 Mich.App. 35, 162 N.W.2d 313 (1968), a case in which a husband sued the family doctor who had been functioning as a marriage counselor and who had warranted an improvement in marital relations. After the plaintiff and his wife were divorced, the plaintiff learned that his wife and the defendant had commenced a sexual relationship during the course of...

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